Update on Human Rights Act 1998

Report: 7
Date: 4 February 2010
By: Deputy Commissioner on behalf of the Commissioner

Summary

This report sets out details of work done within the MPS to embed the Human Rights Act 1998 as part of everyday policing. It describes significant areas of policing which have human rights implications and describes the regulatory framework in place in those areas. The report proposes that existing monitoring arrangements are used in order to enable the MPA to discharge its legal obligation to ensure Human Rights compliance within the MPS.

A. Recommendation

That members

1. note the extent of the work already carried out within the MPS to embed the Human Rights Act into everyday policing;
2. agree that human rights monitoring by the MPA forms part of already existing monitoring and compliance regimes.

B. Supporting information

1. The Human Rights Act (HRA) came into effect on 2 October 2000. It partially incorporates the European Convention on Human Rights and Fundamental Freedoms (ECHR) into domestic UK law and makes it unlawful for a public authority such as the MPS and the MPA to act in a way which is incompatible with Convention rights, (unless other primary legislation is incompatible with those rights - in which case domestic law is followed). A person aggrieved by any incompatible act or omission on the part of a public authority can challenge the act or omission in a UK court. With regard to the MPS, that claim would be made against the Commissioner.

2. The HRA did not create any new rights and much comment at the time focussed on the HRA ‘bringing rights home’. Previously, UK citizens could only enforce Convention rights in the European Court of Human Rights in Strasbourg. The principal ECHR duties concern an individual rights to life (article 2), the prohibition of torture (article 3), prohibition of slavery and forced labour (article 4), to liberty and security (article 5), to a fair trial (article 6), to private and family life (article 8), to freedom of expression (article 10). Freedom of assembly and association (article 11) and protection of property (protocol 1 article 1). The European Court of Human Rights has given some of these rights an extended meaning, for example, the right to life is now understood to include a right to an independent investigation of death where agents of the state may have been responsible.

3. A public authority such as the MPS can only interfere with such rights where the right in question is one of the qualified rights, the interference is itself in accordance with the law (either statute or common law) and is in pursuance of a legitimate aim, which is both necessary and proportionate. The interference must be ‘necessary in a democratic society’ and even then must be the smallest degree of interference that can be justified. The HRA thus requires the courts to strike a balance between the rights of the individual and the interests of society in the maintenance of public order and in the prevention and detection of crime. Some Convention rights are qualified and some are absolute: for absolute rights, such as the prohibition of torture, there can be no interference so if the conduct in question is of a severity to amount to torture, it amounts to a breach of ECHR rights.

4. In cases where there is a conflict of qualified rights e.g. between the right to private life, the right to enjoy freedom of speech and freedom of association, the right to practice a religion and the right to protection of property, it is the obligation of Parliament and the pubic authority to achieve a balance which is as fair as possible to all sides.

The MPS approach following the introduction of the HRA

5. A significant amount of work was carried out before the HRA came into force on 2 October 2000. The MPS aim was to make all police officers and relevant police staff aware of the provisions of the HRA and to embed its principles into every-day work. The areas concentrated on included: (1) ensuring a co-ordinated and consistent approach to the implementation of the HRA within the MPS, (2) training and (3) ensuring compliance of MPS policy with the HRA.

Co-ordination of HRA implementation in 2000

7. The Strategic Co-ordination Group (a forerunner of the Strategy and Improvement Department) coordinated the range of activities aimed at ensuring that the effects of the HRA were implemented and embedded within MPS policy and practice. These included:

• Working with a newly-established MPS Human Rights Team which developed human rights best practice for the MPS in conjunction with the ACPO national programme;
• The publication of a Human Rights Act manual for use by staff;
• The establishment of a Human Rights Help line for use by staff;
• The production of a poster campaign to promote the mnemonic ‘PLAN’ (this will be explained later in this report);
• Liaison with the MPS Directorate of Legal Services (DLS) in order to provide updates in the law when necessary and obtain advice in respect of compliance of specific activities; and
• Delivery of specialist training to senior offices.

Training in 2000

8. The MPS Training Management Board agreed early in 2000 to a mandatory programme of initial Human Rights training for all MPS staff. The training package was developed for all England and Wales police forces by National Police Training (NPT) on behalf of ACPO. In May 2000, NPT trained centrally-based MPS trainers who then began delivery of training throughout the MPS.

9. The training consisted of a workbook on Human Rights which all MPS staff (police officers and police staff) were required to complete by June 2000. All MPS police officers and relevant police staff (i.e. those in supervisory grades and those with contact with the public) were then required to attend a one-day training course delivered locally by MPS trainers between July and December 2000.

10. There were a number of myths and misperceptions in existence in relation to the HRA including the expectation that the HRA would inhibit police activity. The training therefore sought to reassure staff that there would generally be no significant change in most routine good policing practices. Officers received an overview of the HRA and, in working through a number of scenarios, some idea of the impact of the Act in practical situations. An extract from the training material states: ‘Good practice before the Act remains the same as it will after the Act. Recording of decisions and reasons for those decisions will further provide protection from claims that Convention rights have been unjustifiably breached’.

11. The training emphasised the importance of recording decisions and the reasons for those decisions. To re-enforce this message for operational policing there was widespread distribution of the ‘PLAN’ poster, requiring officers to record their decisions and reasons to show that they were:

• Proportionate (that there is a balance between competing rights and interests),
• Legal (actions are grounded in legislation or common law)
• Accountable (actions can be justified)
• Necessary (different courses of action are considered e.g. the reasons why an arrest would be more appropriate than a summons in particular circumstances).

12. Practices and policies were reviewed in specialist units and training given as appropriate covert policing, for example, where the introduction of the HRA necessitated the Regulation of Investigatory Powers Act (RIPA) in order to put a regulatory framework around a range of investigatory powers to ensure that those powers are used lawfully and in a manner that is compliant with the ECHR. RIPA also requires public authorities to consider whether the use of covert techniques is necessary and proportionate.

Policy Compliance in 2000

13. In 2000 the MPS initiated a programme to ensure compliance of all existing MPS policies with the provisions of the HRA. This was carried out by the MPS Human Rights Branch which took the opportunity to rationalise existing MPS policy (which could be found in a number of sources) into a single coherent body.

Current Human Rights activities

14. All of this information is given to indicate to members the substantial amount of work that was undertaken to ensure that human rights considerations were made part of everyday policing. Human rights issues are now closely bound up with day to day policing and dealt with, by and large, as business as usual. Once it was felt, in 2002, that human rights implications were fully embedded within MPS, the Human Rights Branch was disbanded. Officers and staff have always had to work within their lawful powers and duties and HRA considerations are an additional (but not always a governing) factor. It may be of interest to members to describe how Human Rights issues are considered in specific areas.

Training – current practice

15. In order to maintain awareness of the HRA within the MPS, probationary constables are required to complete a computer-based training course on the subject as part of their initial training. This training is re-enforced in a classroom-based lesson.

16. In addition, all MPS staff are required to complete a mandatory computer-based training course on equalities and diversity issues which incorporates the basic legal requirements of equalities legislation and the implications of the HRA for equalities and diversity. The system records completion of the course by the student and this information can be made available for management purposes. BOCUs can also publish training records in relation to this course on their BOCU Intranet site.

17. At a senior level, MPS Management Board received a refresher course on Human Rights from the Director of Legal Services in July 2009.

Policy Development – current practice

18. Following the implementation of the HRA, the work of the Human Rights Branch was incorporated into the Policy Co-ordination Unit (PCU), currently within S&ID, which oversees the MPS corporate policy making process.

19. In order to ensure that corporate policy meets consistent standards, the PCU requires anyone developing a corporate policy (usually police officers or police staff with substantial operational experience within their field) to complete a ‘policy workbook’ in which human rights issues are one of a number of factors which must be considered including equalities legislation, health and safety, data protection, etc. Lawyers in the MPS Directorate of Legal Services are available to advise policy developers on the impact of the Human Rights Act on their particular area of policy. New policies are routinely submitted to DLS for general legal compliance approval, and an important aspect considered in that advice is ECHR compliance.

20. MPS policy is available to the public and to members of staff on the MPS Publication Scheme on the MPS web-site. Parts of MPS policy is not published if its publication would compromise investigations and proceedings and law enforcement generally. In addition it is not the current policy of the MPS to publish Standard Operating Procedures.

Operational policing

21. Human rights issues have been embedded in every-day policing and given the complexity of policing in London are rarely considered as stand-alone issues. Human rights issues are usually part of a complex regulatory framework of legislation, policy and codes of practice. Certain areas of operational policing however inevitably bring consideration of human rights issues to the fore and members may wish to have some indication of how human rights factors are taken into consideration in these areas.

Public order

22. The following paragraphs may assist members to understand how developments in human rights law are introduced into public order policing. They are not intended to duplicate the work of the current MPA scrutiny into MPS public order policing of violent disorder.

23. Policing of demonstrations, processions and assemblies is clearly an area where there are a number of potentially conflicting rights and interests in play and which police have a duty to balance. It is also an area where the police service is very much on display and its actions and decisions in relation to balancing rights and interests is often subject to intense scrutiny. This has been the case long before the introduction of the HRA which in effect overlaid but did not replace existing considerations.

24. ECHR rights to be considered in these circumstances include the right to enjoy freedom of speech and freedom of association or the right to liberty and security. Often the situation is complex and multi-layered, since exercise of these rights by one group can conflict with the exercise of the same rights by others as well as with the enjoyment of other rights such as the protection of property or the right to freedom of expression.

25. A number of statutes and common law powers govern the policing of public demonstrations. These include the Public Order Acts of 1986 and 1994 and the Crime and Disorder Act of 1998. In order to respect ECHR rights, the exercise of the powers in those Acts requires consideration whether to do so is necessary and proportionate, and balancing the rights of demonstrators against any counterbalancing rights of others affected by the demonstration. Equally, many everyday duties of police impact on rights however, such as arresting someone, and what is necessary generally is to ensure that duties are conducted in accordance with legal powers, necessarily and proportionately. Officers in the public order sphere therefore receive additional guidance to assist in the proper exercise of their powers. This can be found in the ACPO manual on policing public order events and, within the MPS, there are policy and standard operating procedures to ensure proper training and management of officers involved in this area of policing.

26. Lawyers from the DLS advise in relation to the complex legal areas around certain high profile public order events, including human rights. The response to the most significant and high profile demonstrations and assemblies is planned and policed by the MPS Public Order Unit. A Gold group will normally meet to plan the appropriate police response and will involve the DLS at an early stage either to advise on specific legal or human rights issues or to consider the planning documentation generally. There is no routine DLS involvement in every demonstration or procession in London given that thousands of such events take place every year. However, there is a monthly meeting between the MPS Public Order Branch and the DLS to discuss forthcoming demonstrations and processions and lawyers are allocated to advise on events as appropriate.

7. In addition lawyers from the DLS are currently engaged in training public order officers in order to enhance understanding of human rights issues generally as part of a wider response to the recommendations of the recent report by Her Majesty’s Inspectorate of Constabulary’s (HMIC) ‘Review of the Policing of Public Protest, Adapting to Protest’.

Custody

28. Operation Emerald is responsible within the MPS for ensuring ethical, efficient and effective criminal justice systems and works closely with other parts of the criminal justice system in order to do so.

29. In relation to custody the MPS, through Operation Emerald, seeks to ensure the fair and equitable treatment and care of all detainees according to each person's individual needs. The regulatory framework within which police operate in relation to custody is PACE and its codes of practice. In addition the MPS has policy on custody designed to ensure a consistent approach to detention of suspects and to their appropriate treatment. The MPS Custody Policy is published on the MPS Internet site: http://www.met.police.uk/foi/az_index.htm#c

30. The policy specifically states that all persons working within the custody environment must comply with the Police and Criminal Evidence Act, the associated Codes of Practice and Human Rights legislation. The custody policy is reviewed annually (including a review of human rights issues) to take account of both local and national developments in custody.

31. Operation Emerald works closely with a number of criminal justice partners to ensure that custody practice and procedures are continuously improved. These include:

• The Crown Prosecution Service (CPS)
• The National Policing Improvement Agency (NPIA)
• Independent Custody Visitors (ICVs).
• Safer Detention Working Party.
• National and regional custody forums.

32. In addition Operation Emerald is engaged in continuous improvement work to enhance conditions in custody suites. These include:

• Modernisation of MPS custody suites (in doing so the views of ICVs have been consulted)
• Ensuring that the needs of women who are carers are taken into account whilst in custody.

33. Operation Emerald’s custody directorate has a rolling programme of compliance inspections covering every custody suite in the MPS and a performance analyst who meets regularly with BOCUs with regard to compliance issues. This programme complements that of the HMIC custody inspection regime.

Use of force

34. The general power to use force in certain circumstances is governed by PACE and the MPS Directorate of Professional Standards (DPS) sets guidelines for it use. The general DPS policy can be found on the MPS Internet site. http://www.met.police.uk/foi/pdfs/policies/professional_standards_policy.pdf

Monitoring

35. The HRA has been in effect for almost ten years. Its application has become part of routine policing and developments in human rights issues are taken into account in particular areas of policing. There is no specific and separate monitoring of human rights issues within the MPS, just as there is no specific monitoring regime in place for compliance with other statutes which make up the regulatory framework within which policing operates, e.g. PACE and its codes of practice. Whilst recognising the statutory duty of the MPA, there is a risk that the construction within the MPS of a separate human rights compliance monitoring regime, with a dedicated ACPO lead and portfolio, may create an additional bureaucratic burden. Wherever possible, therefore, it is proposed that human rights monitoring forms part of already existing monitoring and compliance regimes. However, the MPS will work with the MPA in the development of the Civil Liberties Panel work programme in order to enhance the panel’s understanding of this issue.

36. Whilst ACPO has an appointed lead on Human Rights, it has no policy about individual forces having a designated champion and leaves it to the discretion of each force on how it meets the requirements of the legislation.

37. Certain areas of policing are already monitored by other statutory bodies. A significant example is covert policing, where covert policing techniques are governed by RIPA. The application of RIPA is overseen nationally by the Office of Surveillance Commissioners and the Chief Surveillance Commissioner is required to report annually to the Prime Minister on the exercise and powers.

38. Other bodies with monitoring responsibilities include the Independent Police Complaints Commission (IPCC), her Majesty’s Inspectorate of Constabulary (HMIC), the Investigatory Powers Tribunal (IPT), the National Policing Improvement Agency (NPIA) and the Surveillance Commissioners. The MPS would not wish to any HRA monitoring by the MPA to replicate the work of these bodies.

39. Existing monitoring arrangements in place within the MPS could be used in certain areas to give an indication of HRA compliance within the MPS. It is proposed that the existing monitoring of complaints, discipline and civil actions against the police can be used to monitor a wide range of police activities with human rights implications. Proceedings and actions in relation to complaints, discipline and civil actions are not based solely on HRA grounds, but a person in a civil action, for example, may add breach of a ECHR right (e.g. Article 5, the right to liberty and security) to a civil action for false imprisonment. Management information on complaints is currently presented to meetings of the Strategic and Operational Policing committee (at a frequency yet to be decided). Information on misconduct and complaints proceedings is also contained in the Commissioner’s Annual Report to the MPA.

C. Race and equality impact

The equality and diversity issues are implicit within this report.

D. Financial implications

There are no specific financial implications arising from this report. However, the there is a risk that the additional level of scrutiny arising from the new duty will lead to an increased demand on business group resources in order to respond to the MPA. Any such demand will need to be managed within existing budgets.

E. Legal implications

1. The legal implications are generally set out in the report.

2. Breach of an ECHR duty entitles the victim (but not an interested bystander) to claim compensation, assessed according to the principles established by the European Court of Human Rights. Although breach of ECHR duties is alleged in some of the compensation claims made against the Commissioner, in most cases such claims are made in parallel to common law damages actions. There have been few free standing ECHR compensation claims.

3. Alternatively, or in addition, a victim may pursue a judicial review claim seeking a declaration that the Commissioner has failed in his ECHR duties. Recent claims have included allegations that the Commissioner failed to pursue an investigation into domestic servitude allegations and that this amounted to a breach of article 4 of the Convention.

4. A claimant who considers that our domestic courts have failed fully to reflect the requirements of the Convention in the terms of a judgment may, generally after exhausting the appeals process, pursue a separate claim against the UK government in the European Court of Human Rights. Many such claims are threatened but few are permitted to pass beyond an initial filter stage. A recent example of a claim where the claimant is dissatisfied with the decision of the Supreme Court, and is asserting that a claim will be pursued in Strasbourg, is L v Commissioner, relating to the information to be provided in Enhanced Disclosure certificates.

F. Environmental implications

1. There are no environmental implications.

G. Background papers

• HMIC ‘Adapting to Protest’ 2009.

H. Contact details

Report author: Beverley Stanford, Strategy and Improvement Department, MPS.

For information contact:

MPA general: 020 7202 0202
Media enquiries: 020 7202 0217/18

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