Human Rights

What are Human Rights?

Human rights are rights that are deemed to belong to all people as such - that is, by virtue of their humanity. In the past, rights so conceived have more commonly been known as natural rights or "the rights of man".

In this way, human rights are ascribed to all humanity, regardless of nationality or citizenship: the doctrine of human rights can therefore come into conflict with the doctrine of the sovereignty of governments and the law. This proclaimed "universality" has historically led to the pursuit of the human rights agenda at the level of international co-operation in the postwar era.

In the UK today, a number of fundamental individual freedoms are protected by the Human Rights Act 1998. This requires all UK law to comply with the European Convention on Human Rights of 1950 (and its First and Sixth Protocols), makes the Convention enforceable in UK courts, and requires the judiciary to interpret domestic law so as to comply with the Convention. Appeals against the rulings of UK courts can still be taken to the European Court of Human Rights, as they could be prior to the Act.

The various Articles of the Convention proclaim the following: the right to life (Article 2); the prohibition of torture (Article 3); the prohibition of slavery and forced labour (Article 4); the right to liberty and security (Article 5); the right to a fair trial (Article 6); the prohibition of extra-legal punishment (Article 7); the right to respect for private and family life (Article 8); freedom of thought, conscience and religion (Article 9); freedom of expression (Article 10); freedom of assembly and association (Article 11); the right to marry (Article 12); the prohibition of discrimination (Article 14).

The First Protocol, moreover, proclaims the right to enjoyment of private property, the right to education and the right to free elections. The Sixth Protocol forbids the death penalty, except during times of war (and then only in line with the law).

Background

The modern, legal approach to human rights stems from the 1948 United Nations Declaration on Human Rights. This was the first international, secular agreement on the rights of man, which stemmed from the desire of the world's governments to prevent the recurrence of the atrocities of the Second World War by setting out a " common standard of achievement for all peoples and all nations".

The text was, and remains, non-binding, but it retains its force as the primary authority on human rights, and has been supported by the UN's ongoing work to encourage its incorporation into domestic laws.

Shortly afterwards, in 1949, the Council of Europe was founded, to promote human rights, parliamentary democracy and the rule of law. Its principal instrument was to be the European Convention on Human Rights, published in 1950, which took up the rights proclaimed in the UN Declaration. The UK played a leading part in the drafting of the Convention, and was one of the first countries to ratify it, in 1951.

During the next ten years, an international judicial system of authority was established to ensure that participant states complied with the Convention. Under the system, the European Commission on Human Rights, set up in 1954, would examine complaints brought by individuals, organisations or other states and rule on their admissibility, before passing them to the Committee of Ministers of the Council of Europe. The Commission, Committee of a contracting state then had three months in which to bring the case before the European Court of Human Rights (established in 1959) for a final, binding adjudication. Individuals were not permitted to bring cases to the Court until 1966.

The expansion of the Council of Europe in the 1980s and 1990s saw the workload of the Convention institutions grow dramatically, with the Commission handling 404 applications in 1981 and 4,750 in 1997, and the Court hearing 7 cases in 1981 and 119 in 1997. In 1998, the part-time Court was replaced with a full-time body.

The ECHR placed all of the original 1948 rights into three categories: absolute, limited and qualified. The prohibition of torture, as an absolute right, was not to be interfered with in any circumstances; limited rights, such as the right to liberty and security, could only be breached in line with the law of the land; and qualified rights could be interfered with if this was deemed to be "necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others".

The Labour government elected in 1997 pledged to incorporate the Convention directly into UK law. In the preceding years, a strong movement calling for this had built up in opposition to the ruling Conservative governments, which many opponents claimed had undermined the social and economic consensus that had prevailed until then - particularly in respect of labour rights. Lacking a codified constitution setting out the rights of citizens, many believed that the doctrine of Parliamentary Sovereignty did not provide adequate protections for individual rights from intrusive government. The subsequent Human Rights Act 1998 came into force on October 1 2000.

Controversies

Human rights are controversial at the political and legal level because they proclaim the superiority of certain principles to nations' statute laws. The Human Rights Act 1998 resolved this conflict by explicitly bringing the Convention into UK law. However, although all other laws must comply with it, unlike many other nations' "bills of rights", the HRA has no privileged position in UK law: unlike in the USA, where changes to the Constitution require special procedures, Parliament could repeal the HRA in the same way as any other law.

Also at the level of principle, there is considerable controversy as to what should be included amongst "human" rights. Many have argued that "economic rights" - such as those outlined in the First Protocol - are not basic natural rights in the same way as the right to life. Social conservatives have been outraged by legislation to recognise transgender people's new identities and to sanction homosexual partnerships, deemed by the Government as necessary under the HRA or the human rights agenda more widely.

Critics of the Act have also argued that it has undermined the authority of Parliament - and as such, democracy itself - by handing so much power to the judiciary. The Act permits judges to deem legislation to be incompatible, and while the Government can appeal these decisions, the ultimate ruling of the European Court is final. The Government, however, maintained that the balance had not shifted. While judges can issue "declarations of incompatibility", they are not empowered to strike down incompatible laws: rather, the Government must decide how to respond to a declaration.

Nonetheless, there have been a number of high profile clashes between the Government and the courts over several criminal justice and immigration measures since the HRA came into force. Measures that have been challenged include the suspension of benefits for "late claim" asylum seekers, the Home Secretary's power to set "tariffs" on sentences and the detention of terrorist suspects without charge.

Human rights groups, on the other hand, argue that the Act does not go far enough, and point to numerous opportunities in the Convention for governments to opt out of certain provisions in the interests of national security. The widened definition of "national security" in the post September 11 world, it is argued, gives public authorities too much licence.

The Conservatives, led by David Cameron, pledged to abolish the Human Rights Act if they were elected to power and replace it with a British Bill of Rights; Nick Clegg and the Liberal Democrats on the other hand were adamant the HRA would not be repealed, creating something of a dilemma for the Coalition. By way of a compromise the new Government stated that it would "establish a Commission" to look into the proposal - a move strongly criticised by many Tory members who insisted their party must keep its manifesto pledge to scrap the HRA.

Statistics

The European Court of Human Rights monitors respect for the human rights of the 800 million
Europeans who live in the 47 States which have ratified the Convention.
Over the past half-century the Court has delivered more than 12,000 judgments.

Violation Judgements:
More than half of the judgments delivered by the Court concerned four of the Council of Europe's 47 member States: Turkey (2,295 judgments), Italy (2,021 judgments), Russia (862 judgments) and France (773 judgments).
Of the total number of judgments it has delivered since it was established in 1959, in over 83% of cases the Court has found at least one violation of the Convention by the respondent State.

On 1 January 2010 approximately 119,300 applications were pending before a decision body. More than half of these applications had been lodged against one of four countries: Russia, Turkey, Ukraine or Romania.

Source: European Court of Human Rights [50 years of activity] - April 2010

Quotes

"We will establish a Commission to investigate the creation of a British Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in British law, and protects and extends British liberties. We will seek to promote a better understanding of the true scope of these obligations and liberties."

'The Coalition: our programme for government' - May 2010

"Given the past commitments the Liberal Democrats have made to protect human rights, we cannot see how the coalition could survive any attempt to water down the HRA. Nick Clegg must hold firm in his resolve."

Unlock Democracy - May 2010

"There will be no retreat over human rights on our watch. And we will not make a false choice between being free and being safe."

Liberal Democrat Justice Minister Lord (Tom) McNally, speaking at the Liberal Democrat Autumn Conference - September 2010