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.

The European Court of Human Rights has also attracted controversy recently with concerns increasing about the number of national court decisions that are overturned by the ECtHR and the huge backlog of cases waiting to be heard.

The UK assumed the chairmanship of the Council of Europe in November 2011 to run for six months until May 2012 and Foreign Secretary William Hague announced that the "overarching theme" of the chairmanship would be the promotion and protection of human rights, with reform of the European Court of Human Rights "the top priority."

In January 2012, in a speech in Strasburg, Prime Minister David Cameron set out an agenda for reforming the ECtHR which would reduce the number of admissible cases, and thus the backlog, by ensuring that the Court did not act as a small claims court or Court of Fourth Instance and did not go over national decisions where it did not need to.

Subsequently the 'Brighton Declaration' on ECHR reform was adopted by all 47 member states of the Council of Europe in April 2012. The agreement will address the concerns raised about the Court by -

amending the Convention to include the principles of subsidiarity and the margin of appreciation;
amending the Convention to tighten the admissibility criteria - so that trivial cases can be thrown out and the focus of the Court can be serious abuses;
reducing the time limit for claims from six months to four
improving the selection process for judges;
setting out a roadmap for further reform.
 

Statistics

ECtHR figures for 1959 to 2011

Since it was established in 1959, the Court has delivered more than 15,000 judgments.
Nearly half of the judgments concerned four member States: Turkey (2,747), Italy (2,166), Russia (1,212) and Poland (945).
Of the total number of judgments it has delivered since 1959, in over 83% of cases the Court has found at least one violation of the Convention by the respondent State.

Since the reform of the Convention system on 1 November 1998, there has been a considerable increase in the Court’s caseload. Barely ten years after the reform, the Court delivered its 10,000th judgment. Its output is such that more than 91% of the Court’s judgments since its creation in 1959 have been delivered between 1998 and 2011.

Nearly half of the judgments in which the Court found a violation included a violation of Article 6, whether on account of the fairness or the length of the proceedings. Furthermore, 58% of violations found by the Court concern Article 6 and Protocol 1 Article 1 (Protection of property). 

Lastly, more than 11% of violations found by the Court concern the right to life or the prohibition of torture and inhuman or degrading treatment (Articles 2 and 3 of the Convention).

UK contribution to the Court's budget:

For 2011 the Court’s budget amounted to just over 58.9 million euros. That budget was financed by contributions from the 47 member States of the Council of Europe in accordance with scales based on population and GDP:
The 2011 contribution of the United Kingdom to the Council of Europe’s (EUR 211.4 million) budget was EUR 24 654 554.

Source: European Court of Human Rights – February 2012
 

Quotes

"Human rights is a cause that runs deep in the British heart and long in British history……..We are not and never will be a country that walks on by while human rights are trampled into the dust."

David Cameron; Strasburg speech – January 2012