Advice on human rights and public law

Liberty and the Public Law Project (PLP) have a telephone advice service for practitioners on human rights and public law.

In a regular series, Mona Arshi and Janet Arkinstall from Liberty, and John Cruse from the PLP, answer some frequently asked questions.Private partiesQ What relevance has the Human Rights Act 1998 to disputes involving private parties?A One of the most frequently asked questions to our advice line has been for an explanation of what relevance, if any, the Human Rights Act 1998 has in the context of disputes involving private, non-public authority, parties.

For example, can the Act be used by private individuals against their neighbours, and what relevance does it have in the context of private workplace rights? Solicitors are in real danger of missing opportunities to use the Act unless they understand the ways in which it can extend beyond acts taken by public authorities.

Part of the confusion is the (correct) perception that Act is designed primarily to deal with acts done by public authorities and where state responsibility is engaged.

Section 6(1) of the Act states that 'it is unlawful for a public authority to act in a way which is incompatible with a Convention right'.

However, in s.6(3) (b) a public authority is defined to include 'a court or tribunal'.

This is arguably the most influential section of the Act, and is the route by which the legislation will have a far greater impact in the private sphere than many lawyers had imagined.

The only difference in purely private disputes is the fact that a party will need to have a cause of action to pin the human rights argument to.

For example, a private employee who alleges that his article 8 privacy rights have been infringed by his employer, will be able to argue that the tribunal judging his unfair dismissal claim, should, as a public authority, ensure that it does not act in a way which is incompatible with that right to privacy.

To support this lawyers have other weapons to use in ss 2 and 3 of the Act.

Section 2 means that lawyers can direct a court or tribunal to Strasbourg case law, which the court or tribunal must take into account (but not necessarily follow).

Section 3 places a new duty on courts and tribunals to interpret legislation compatibly with convention rights unless it is impossible to do so.

These are all tools that can be used by lawyers, even if the parties are both private litigants.

The use of the Act in this way is commonly referred to as 'horizontally' and there has been much fevered academic debate about its potential impact on the courts.Medical treatmentQ My client's Health Authority will not fund treatment which she feels is most appropriate for her medical condition.

What rights does she have to treatment and how can they be enforced?A Unlike other areas of social welfare law, such as community care and housing, health care provision is not generally based on duties owed by a public body - here the health authority - to individuals.

Instead, the NHS legislation imposes a 'target duty' on responsible government minister to promote a national health service by providing a range of broadly defined services.

This is notoriously difficult to enforce using judicial review proceedings and the courts have been particularly wary of interfering in health authority decisions about resource allocation, even if this means access to services can depend on where a patient lives.

There is even greater reluctance to interfere with clinical decisions; but in recent years the courts have been a little more interventionist.

For example, one health authority's failure properly to take into account national guidance on beta interferon was found unlawful in R v North Derbyshire Health Authority ex parte Fisher, [1999] 1 CCLR 150.

While the guidance was not binding, sound and rational reasons would need to be given for failing to follow it.

In R v Secretary of State for Health ex p Pfizer, [1999] 2 CCLR 270, guidance on prescription of Viagra was found to be unlawful because it unduly restricted GPs' statutory discretion to prescribe drugs which had not been formally banned.

In R v North West Lancashire Health Authority ex parte A, D and G, [1999] 2 CCLR 285, the Court of Appeal suggested that it would be irrational for health authorities not to have a transparent policy explaining their priorities and unlawful to refuse to consider exceptions to such a policy.

The other potential source of rights is the Human Right Act.

Withdrawal or refusal to provide vital treatment would, in extreme cases, engage articles 2 or 3 of the European Convention on Human Rights.

Treatment decisions which impact significantly on private, family life and the home may engage article 8.

In practical terms, your first step should be to establish the health authority's reasons.

If the decision is based on a local policy, this should be examined to establish whether there are grounds for a judicial review challenge.

If the decision is essentially clinical, using the NHS complaints procedure is more likely to be appropriate.

A guide to the procedure is available free from the Public Law Project.

Q When can a public body's delay in taking a decision be challenged using judicial review?A Delay can become unlawful in a number of situations.

Payment of housing benefit is one topical example.

Once a claimant has provided sufficient information for the claim to be decided, the local authority is obliged to take a decision within 14 days when it is not 'impracticable' to do so.

If it is impracticable, the local authority then becomes obliged to make rent payments on account as long as the claimant is a private or housing association tenant.

In cases of gross delay, the local authority becomes vulnerable to challenge not only for breaching its duty to make payments on account, but also because failure to determine a claim in a reasonable time can be irrational in the Wednesbury sense.

Challenging administrative delay on the grounds that it is inherently irrational is not uncommon in the immigration context and it is sometimes also clear that relevant factors have not been taken into account when deciding priorities.

Although the legal framework allows considerable discretion in the way applications for entry and stay are processed, the courts, both here and in Strasbourg, have made clear that this is not unlimited.

Judicial review may well be an option when a case is not prioritised despite compelling reasons to do so, for example, because a person's health will be prejudiced as a result of further delay.

Similarly, when a person's liberty is curtailed - for instance, if he or she is being detained pending deportation but there is no prospect of this occurring in the foreseeable future - it may be appropriate to challenge the lawfulness of the detention decision.

In certain fields of social welfare, law ombudsmen are often called on to decide whether delay amounts to maladministration.

For example, the Local Government Ombudsman has published a number of reports criticising local authorities for taking longer than six months to assess community care needs.

Although such reports do not have the status of court judgments, they nevertheless provide a useful source of guidance as to when delay in the provision of services becomes unreasonable in a broad sense, and can be useful when making representations to the relevant authority.l The human rights and public law line is open Monday and Wednesday 2pm to 5pm and Tuesday and Thursday 10am to 1pm, and is free to practitioners with a general civil contract.

Tel: 0808 808 4546.