Positive obligations to investigate and protect
In all democratic systems of law the courts to some extent bend their interpretations of older laws to reflect changes in circumstances or public opinion. This is known as the “living instrument” principle. The Convention requires that states have national laws to protect life and prevent torture, degradation and slavery, and since 1999 Strasbourg then our own courts have interpreted this requirement more proactively in that state bodies must do what is reasonable to protect life and prohibit torture, degradation and slavery, and to investigate possible violations that they “knew or ought to have known” about. Recently the courts have extended this beyond cases where the deaths or degradation were caused by state agencies to a state duty to investigate and / or prevent deaths, severe degradation etc. when caused by private individuals or agencies e.g. 4. Black Cab case.
We should emphasise that neither the Strasbourg nor the UK courts make unreasonable demands on the state agencies’ abilities to protect or investigate: for example the Met were found to have violated the Article 3 Prohibition on Degradation over the Black Cab women because for 9 years Met officers failed to join the dots and use evidence on their own files, and this in spite of having trained their officers in this drugs and alcohol assisted type of rape.
See also 2. Mental health and the NHS.
The HR Act and the Equality Act (2010)
The Convention and the HR Act limit the Right to Freedom from Discrimination to discrimination in respect of any of the other 15 rights. Also their list of pprotected characteristics is substantial and leaves it open for the Strasbourg court to recognise others as well. However the Convention and the HR Act govern the relationship between the states and their citizens and residents, and consistent with this only target private sector discrimination when it concerns core civil rights areas such as legal services.
The Equality Act provides a generous but closed list of protected characteristics, see: Equality HR Commission Guide to Equality Act, but the compass of its protection includes both state and private sector providers of goods and services regarding their treatment both of their clients and of their employees.
However the most crucial difference between them lies in the HR Act’s overarching powers respecting all other relevant laws whether old or new. A determined Parliament could repeal or amend the the Equality Act or any other single act of Parliament, but as long as the HR Act remains on the statute book it will continue to provide a floor of decency below which we should not slip.