Human Rights -Week 3
What are Human Rights?
Definition: Human rights are the fundamental rights and freedoms that every person is entitled to from birth until death, regardless of nationality, residence, gender, ethnicity, religion, or any other status.
Key Principles: Human rights are based on values such as dignity, fairness, equality, respect, and independence.
Indivisibility: These rights are universal, inalienable (cannot be taken away), and protected by law. Even though they are absolute, certain rights may be restricted in specific circumstances (e.g., national security, criminal conduct).
Legal Basis in the UK: Human rights are protected in the UK by the Human Rights Act (HRA) 1998, which incorporates the European Convention on Human Rights (ECHR) into domestic law.
History of Human Rights Legislation in England and Wales
1689 - The English Bill of Rights:
Laid the foundation for the rule of law, the supremacy of Parliament, freedom of speech, and protections against arbitrary governance.
It included principles such as no taxation without Parliament’s approval, frequent Parliaments, and freedom from cruel punishments.
The Bill has had a lasting impact on human rights, influencing the US Bill of Rights and later documents like the Universal Declaration of Human Rights and the European Convention on Human Rights.
1945 - United Nations Charter:
Post-WWII, the world sought peace and stability, leading to the creation of the United Nations (UN).
The UN Charter, signed in San Francisco by 50 nations, aimed to prevent future wars and promote international cooperation in securing peace and human rights.
1948 - Universal Declaration of Human Rights (UDHR):
Adopted by the UN General Assembly, this declaration marked a milestone in recognizing fundamental human rights globally. It enshrined rights such as freedom from torture, the right to life, freedom of expression, and equality before the law.
1950 - European Convention on Human Rights (ECHR):
The Council of Europe drew up the ECHR to protect civil and political rights. It was inspired by the UDHR and was signed in Rome in 1950.
The UK ratified the convention in 1951 but did not incorporate it into domestic law until the Human Rights Act 1998.
1960s-1990s - Key Domestic Legislation:
1965: Race Relations Act - First law in the UK aimed at preventing racial discrimination.
1966: The UK accepted the right of individual petition to the European Court of Human Rights (ECtHR), allowing individuals to bring human rights claims to Strasbourg.
1975: Sex Discrimination Act - Banned discrimination based on gender or marital status.
1995: Disability Discrimination Act - Prohibited discrimination against disabled people in employment and access to services.
1998: Human Rights Act - Fully incorporated the ECHR into UK law.
European Court of Human Rights (ECtHR)
Creation: The ECtHR was established in 1959 under the ECHR to ensure that signatory states adhere to their human rights obligations.
Key Features:
Individual Petition: From 1998, Protocol 11 made the right to individual petition to the court compulsory, meaning individuals could directly file complaints of human rights violations.
Growth in Cases: From fewer than 1000 cases in the 1980s, the ECtHR received over 50,000 cases in 2008. Many decisions since the 1990s significantly shaped European human rights jurisprudence.
Backlog and Reforms: In response to the rising number of cases, Protocol 14 (2010) introduced stricter criteria for case admissibility, allowing the court to filter out less serious cases where the applicant did not suffer a "significant disadvantage."
UK Statistics:
Since 2017, the UK has had one of the lowest numbers of applications to the ECtHR (0.06 per 100,000 inhabitants).
In 2020, out of 284 cases lodged against the UK, only 2 were found to have breached the ECHR.
The Articles of the European Convention on Human Rights
The ECHR sets out the following key rights:
Article 2: Right to life.
Article 3: Freedom from torture and inhumane or degrading treatment.
Article 4: Prohibition of slavery and forced labor.
Article 5: Right to liberty and security.
Article 6: Right to a fair trial.
Article 7: No punishment without law (prohibition of retrospective criminal law).
Article 8: Right to respect for private and family life.
Article 9: Freedom of thought, conscience, and religion.
Article 10: Freedom of expression.
Article 11: Freedom of assembly and association.
Article 12: Right to marry and start a family.
Article 14: Protection from discrimination.
Human Rights Act 1998 (HRA)
Purpose: The HRA made the rights under the ECHR enforceable in UK courts, removing the need for individuals to go to Strasbourg to challenge human rights violations.
Key Provisions:
Section 3: UK courts must interpret all domestic laws in a way that is compatible with the ECHR, where possible.
Section 6: Public authorities (government bodies, police, NHS) must not act in a way that breaches Convention rights. This is known as the vertical effect (citizens vs. the state).
Debate on Horizontal Effect: There is ongoing discussion on whether the HRA can be used in cases between private individuals (horizontal effect). Some courts have applied Convention rights in private disputes, such as in Douglas v Hello! (2007) regarding privacy and freedom of expression.
Recent Developments and Challenges to the Human Rights Act
Judicial Review:
Gardner & Harris v Secretary of State for Health (2022): This case involved a challenge to the government's handling of care home residents during the COVID-19 pandemic. It alleged breaches of Article 2 (right to life), but the human rights claim failed, while parts of the common law claims were upheld.
Cliff Richard OBE v BBC (2018):
Balancing rights to privacy (Article 8) and freedom of expression (Article 10) when the BBC aired a police raid on Sir Cliff Richard’s house.
Lee v Ashers Baking Company Ltd (2018) (also known as the Belfast Bakery Cake Case):
A bakery refused to make a cake supporting gay marriage. The UK Supreme Court ruled that the refusal was based on the bakers’ religious beliefs, not discrimination against the customer’s sexual orientation.
Government’s Rwanda Deportation Plan:
The Court of Appeal ruled in 2023 that the government’s policy of deporting asylum seekers to Rwanda violated human rights, particularly around the risk of torture or inhumane treatment (Article 3). The case is expected to be reviewed by the Supreme Court.
Equality and Human Rights Commission (EHRC)
Established: Launched in 2007 following the Equality Act 2006, the EHRC promotes equality and protects human rights.
Functions: The Commission provides advice to individuals, conducts inquiries (e.g., Windrush Inquiry), and brings legal proceedings when necessary. It monitors domestic law and scrutinizes new legislation for human rights compliance.
Commissioners: There are currently 14 commissioners, chaired by Baroness Falkner.
Remedies for Breach of Human Rights
Judicial Review: Allows courts to review the legality of public authority actions.
Compensation: Available under specific statutes, such as the Criminal Justice Act 1988 for miscarriages of justice.
Habeas Corpus: Ensures the right to a fair trial and protection from unlawful detention.
Civil Claims: Can be brought for breaches of privacy, freedom of expression, and other rights.
Current and Future Legislation
Bill of Rights Bill 2022: Proposed reforms to replace the Human Rights Act, setting higher thresholds for legal claims, limiting the power of UK courts to interpret laws in line with the ECHR, and reducing the influence of Strasbourg decisions. This bill has sparked controversy, with many legal experts and civil rights groups arguing that it would undermine the protection of human rights in the UK.
Clean Air Bill: A proposal to establish the right to clean air in England and Wales, led by Baroness Jones and Caroline Lucas.