Consider human rights before making a decision

Under Section 58 of the Human Rights Act 2019, all public service employees must:

  • give proper consideration to human rights before making a decision (procedural obligation)
  • act and make decisions that are compatible with human rights (substantive obligation).

How to use this tool

This decision tree will help you consider human rights before making a decision (your procedural obligation), which will help you to act and make decisions that are compatible with human rights (your substantive obligation). At the end, you can email  yourself a copy of your answers as a record. 

As this decision tree is a guide only, talk to your agency's legal team if you need expert legal advice. Your agency may also have its own process for assessing human rights impacts. 

Before you begin

We recommend you:

Step 1: Check if section 58 of the Human Rights Act applies

An act includes a failure to act or a proposal to act, as defined under Schedule 1 of the Human Rights Act 2019.

A decision is not defined in the Human Rights Act 2019, but it means to come to a judgement, conclusion or resolution. This definition should be applied broadly for the purposes of the Human Rights Act 2019

Step 2: Identify if any human rights are restricted by the decision

Make sure you have read about the 23 human rights and what they cover before continuing. 

Step 3: Check if there are existing legal requirements

A public entity can act or make a decision that limits human rights if:

  • it is reasonable and justifiable, and
  • there was no other way to act differently (to limit or remove incompatibility) or make a decision because of another law.

For example, the actions of a police officer executing a search warrant may limit human rights but is lawful and permitted by the Human Rights Act 2019 because the action is requirement of law.

Section 13 of the Human Rights Act 2019 provides further guidance on:

  • when human rights may be limited
  • what to consider when  you are assessing if an act or decision is compatible. 

Step 4: Consider if the restriction is reasonable and justified

You need to assess if the restriction:

  • is lawful?
  • has legitimate aim or proper purpose?
  • is rational?
  • is necessary?
  • is fair and balanced?

Lawful

Purpose

Rational

Necessary

Fair and balanced

Limitation or restriction may not be reasonable and justified 

The act or decision may not be compatible with the Human Rights Act 2019

Consider:

  • if there another way to undertake this action that would be compatible with the Human Rights Act 2019?
  • what may be some other reasonable options to consider?

For example, if your process already has in place procedural and contractual requirements that act lawfully to protect individuals, then the act or decision could already be reasonably justified.

Next steps

The act or decision is compatible with the Human Rights Act 2019

Based on your answers, you can be reasonably confident your action or decision does not have implications under the Human Rights Act 2019

You should keep a copy of this assessment as a record of the:

  • justification for the act or decision
  • process used to consider human rights.

Next steps

  • Use these results as a prompt to undertake a more comprehensive human rights impact assessment: 
  • Include this assessment for review and reference to the final decision maker, as part of your human rights assessment process.
  • Make sure you keep a record of this assessment and any subsequent reviewed decisions on an appropriate internal file.
  • If necessary, contact your agency's legal services team for specific advice. 

Likely to be reasonable and justified under the Human Rights Act 2019

Based on your answers, the act or decision is likely to be compatible with the Human Rights Act 2019.

You should keep a copy of this assessment as a record of the:

  • justification for the act or decision
  • process used to consider human rights.

Next steps

  • Use these results as a prompt to undertake a more comprehensive human rights impact assessment: 
  • Include this assessment for review and reference to the final decision maker, as part of your human rights assessment process.
  • Make sure you keep a record of this assessment and any subsequent reviewed decisions on an appropriate internal file.
  • If necessary, contact your agency's legal services team for specific advice. 

Receive a copy

Your details

Based on your answer, you are not performing an act or decision

Your obligation under section 58 of the Human Rights Act 2019 does not apply – do not progress further.

However, there may be other obligations within the Human Rights Act 2019 for consideration.

Next steps: