OPERATIONAL GUIDANCE

HUMAN RIGHTS ACT 1998

CHARITIES AND HUMAN RIGHTS

OG 71 B3-18 September 2000

Purpose: This guidance sets out how the Human Rights Act affects charities.

Divisional responsibility

For action:

All Divisions

For information:

All Divisions

Contents

1. Background
2. What is meant by "public authority"?
3. Private bodies with public functions
4. Key Characteristics of a public authority
5. Charities with public functions
6. Public functions and private acts
7. Implications for charities that fall within the scope of the Human Rights Act
8. Convention rights most likely to affect charities
9. Interference with a person’s human rights
10. Human rights challenges against charities
11. Human rights benefits for charities
12. Where charities can go for further information

Meaning of expressions - list of Glossary terms used in this Guidance
Index to further related information

1. Background

This will include some charities and voluntary organisations. This guidance looks at how the Human Rights Act affects them.

2. What is meant by "public authority"?

The Human Rights Act deliberately does not explain the meaning of "public authority" or "public function" in detail. It will be for the courts to interpret the Human Rights Act and to decide what are "public authorities" and what are not. Parliament is specifically excluded from the definition, apart from the House of Lords when sitting as a court.

Although the term "public authority" is not defined by the Human Rights Act it covers three broad categories:

• Obvious public authorities such as a Minister, a Government Department or Agency (including the Charity Commission), local authorities, health authorities and trusts, the armed forces and the police, prison and immigration authorities and public prosecutors. (Everything these bodies do is covered by the Human Rights Act.)

• Courts and tribunals.

• Any person or organisation which carries out some functions of a public nature. Sometimes only part of an organisation would be considered a public authority under the Human Rights Act. Railtrack, for example, is considered a public authority in relation to its work as a safety regulator for the railways, but not when acting as a commercial property developer. (This category includes some charities.)

3. Private bodies with public functions

The Human Rights Act applies to private bodies that have some public functions. Examples of such bodies include:

• privatised utilities that exercise public functions;

• regulatory bodies;

• professional bodies in their regulatory capacities;

• charities and voluntary organisations which carry out public functions for central or local authorities. (For example running residential homes);

private or independent schools;

• private companies managing contracted out prisons;

• bodies which are legally public corporations.

4. Key Characteristics of a public authority

In some cases it may be difficult to know if a body is a public authority for the purposes of the Human Rights Act. Organisations may need to take legal advice to clarify this, but the characteristics of a public authority would include:

• whether the body performs or operates in the public domain as an integral part of a statutory system which performs public law duties;

• whether the duty performed is of public significance;

• whether the rights or obligations of individuals may be affected in performance of the duty;

• whether an individual may be deprived of some legitimate expectation in performance of the duty;

• whether the body is non-statutory but is established under the authority of a national or local government body;

• whether the body’s work is supported by statutory powers and penalties;

• whether the body’s work involves regulating the activities of the public or section of the public;

• whether the body performs functions that national or local government bodies or a health authority would otherwise perform;

• whether the body is under a duty to act judicially in exercising what amounts to public powers.

Charities should carefully consider their functions and the legal powers and duties of their organisation – these are important in determining whether a person or body is a public authority for the purposes of the Human Rights Act.

Please note the Charity Commission cannot decide whether or not a body is a public authority.

5. Charities with public functions

Charities do not fall within the definition of a public authority for the purposes of the Human Rights Act by virtue of their being charities. Some charities that appear to be aimed at the individual may in fact be carrying out a public function if they are doing work that would normally be the responsibility of central government or a local or health authority. Many charities and voluntary organisations carry out public functions, either on behalf of, or in partnership with, other authorities. In many cases local authorities have stopped carrying out certain public functions themselves and have entered into contracts with private organisations to carry them out for them. Many of these organisations are charities.

The work a charity does for or on behalf of another authority will be considered a public function for the purposes of the Human Rights Act. Such work must be carried out in a way that is compatible with human rights. As it appears likely that local government work will continue to be entrusted to charities in this way, more and more voluntary and charitable activity will fall within the scope of the Human Rights Act.

Examples of charities with public functions might include:

• residential homes;

• hospices;

• healthcare and advice centres;

• child care agencies;

• housing associations;

• family planning, abortion advice centres.

Although it is the functions, ie the legal powers and duties of the organisations, which are important in determining whether a person or body is a public authority for the purposes of the Human Rights Act, it is their relationship with the individual which will come under scrutiny when the Human Rights Act is applied because it gives human rights.

6. Public functions and private acts

If everything that a charity does can be regarded as public functions, then it will all have to be done in a way that is compatible with human rights. More commonly though, charities falling within the definition of a public authority will have some public and some private functions. Private acts are not covered by the Human Rights Act.

For example, where a charity is raising funds or recruiting staff it is probably acting privately. The point is whether the act is one which is carrying out a public function. In the case of a registered care home the delivery of the care plan is likely to be a public function; the recruitment of the staff is not. In the case of an independent school, decisions about who should supply it with stationary or equipment will be private acts; decisions about the way in which it will provide educational services in the school will be public functions.

7. Implications for charities that fall within the scope of the Human Rights Act

However, if a charity does breach the Human Rights Act it would be liable to the remedies available in the courts. Someone may bring a freestanding case against the charity under the Human Rights Act and could apply to the courts for damages against it.

If a charity has acted unlawfully under the Human Rights Act there is the possibility that a claim could be made during the course of other litigation against it. For example, if a charity were facing some sort of negligence action it is likely that someone would say that there was also a breach of the Human Rights Act.

Damages are restricted to civil proceedings as criminal courts do not have the power to award damages or compensation in respect of Convention violations. However there are other remedies open to criminal courts to grant such as staying proceedings, quashing indictments and excluding evidence.

Before damages are awarded the court must be satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made (section 8 (sub sections 3 - 4)). As often happens with decisions of the Court of Human Rights a simple finding that an unlawful act has occurred may be considered a sufficient remedy in all the circumstances. The level of damages awarded by UK courts must be commensurate with the level of damages awarded by the Court of Human Rights. Such awards usually range between £5000-£15,000.

The Human Rights Act would not apply if the charity could not have acted differently because of existing primary legislation.

8. Convention rights most likely to affect charities

The Human Rights Act is about human dignity above all else. This approach must be central to a charity’s considerations about human rights. Some Convention rights are likely to have more impact on charities and voluntary organisations than others do. Examples of those that are likely to affect such organisations are:

Article 3 - Right not to be subjected to torture or inhuman treatment

This includes the right not to be subjected to degrading treatment and so could apply to organisations providing care, such as hospitals, residential homes etc.

Article 6 - Right to a fair trial

This right might affect procedures for case reviews, complaints hearings, tribunals and appeals conducted by charities. It ensures that everyone has a right to a fair hearing.

Article 8 - Right to respect for private and family life

This has relevance for organisations providing care homes or domiciliary care and to any organisation with a public function that holds personal information.

Article 9 - Freedom of thought, conscience and religion

This might affect, for example a charity running a care home where one of the patients is a Muslim and wishes to wear the chadoor. The home may find this inconvenient and contrary to its policies but it could not force compliance with the policy because under Article 9 the patient has a right to manifest her religion. (On the other hand in a privately run prison a rule about what clothing could be worn would be seen as being in accordance with the law. A sensible rule on prisoners clothing could be justified as having a legitimate aim and being necessary in a democratic society.)

Article 2 of the First Protocol – Right to education

This may be relevant for issues involving special educational needs provision, access to, or expulsion or exclusion of children from, schools, and (when taken together with Article 14: Prohibition of discrimination) the provision of education which is discriminatory between sexes, races or other categories (although this is likely to mainly be an issue where adequate educational provision is not available elsewhere locally for children excluded from schools that do discriminate, such as single sex schools).

9. Interference with a person’s human rights

There are three rules that have to be applied if there is to be an interference with a person’s rights. These are that any interference:

• can only be "prescribed by" or "in accordance" with the law (in other words there must be clear legal rules which apply and which justify the interference);

• must have a legitimate aim;

• must be "necessary in a democratic society" (this implies that any interference must be as small and as reasonable as possible).

Some rights are not absolute and they can come into conflict with other rights in the Act or be subject to limitations at law. For example, a patient at a hospital following a road accident may wish to keep details of their condition private under Article 8. Newspapers may have a legitimate interest in the road accident and may wish to publish details of the injuries claiming a right to freedom of expression under Article 10. In such a case the hospital has no duty to tell the newspaper what the injuries are and should keep the details private, but if the newspaper did somehow discover what the injuries were it would be for the Courts to decide how the competing rights were to be balanced.

This can be a quite a complicated area of the Human Rights Act. If a charity’s trustees think some of its procedures are in conflict with human rights they may wish to consider seeking legal advice.

10. Human rights challenges against charities

Some correspondents may write to us about claims that a charity’s policies or procedures interfere with human rights. The first thing to remember here is that the Human Rights Act does not apply to all charities. It only applies to those charities that undertake public functions ie functions that a charity undertakes for or instead of a central or local authority. Even where it does apply to a charity it only relates to its public functions and not to any functions that are of a private nature (ie its charitable purposes that are not undertaken under a statutory authority).

If someone raises a human rights issue with us regarding a charity’s activities you should explain the extent to which the Human Rights Act applies to charities in accordance with the guidance in this OG. If the activity about which a complaint has been made appears to concern a public function, as described above, please ask the correspondent to address their complaint to the charity or to the central or local authority that has responsibility for that function. We are only able to involve ourselves in the matter if the issue also raises a cause for concern regarding the administration or charitable purposes of the charity. For example, there may be governance, good practice or public confidence issues that we might wish to take up with the charity. Also we may become involved if the charity becomes involved in legal proceedings.

11. Human rights benefits for charities

The implementation of the Human Rights Act will bring new responsibilities for some charities, but it will also bring opportunities too. Charities themselves will enjoy the Convention rights and may be able to take advantage of them to challenge the activities of others where the rights of their organisation are being infringed. Charities can also use it as an opportunity to build the principles of human rights into their policies and procedures to help develop and implement good practice and improve attitudes and behaviour towards people that they help and work with.

12. Where charities can go for further information

There are a number of websites and helplines that charities may find useful. These include:

The Department for Constitutional Affairs: http://www.dca.gov.uk/peoples-rights/human-rights/index.htm

This site contains material on the Human Rights Act, Parliamentary questions, frequently asked questions, and other material relating to the Human Rights Task Force, the Human Rights Act and international human rights instruments.

The Home Office Human Rights Helpline: Telephone: 0207 273 2166

The Council of Europe, Human Rights Directorate: http://www.humanrights.coe.int/ This site contains details of the Council’s work in the human rights field.

The European Court of Human Rights: www.echr.coe.int/ This site contains details of the Strasbourg court’s judgements.

The following words and phrases are defined in the Glossary of Terms:

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The Convention
Convention rights
Human Rights Act
The Strasbourg Court

Go to: Index to further related information