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1Unit 9: Human rights
2Introduction
3This unit introduces the legal basis of human rights protection in the UK. It briefly considers the international sources of these rights before examining the regional and domestic frameworks for protecting human rights. Ultimately, this unit focuses on the development and definition of human rights found in the European Convention on Human Rights (ECHR) 1950 through to the Human Rights Act (HRA) 1998.
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5Learning outcomes
6After studying this unit you should be able to:
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8discuss the legal foundations of human rights
9explain the different sources of human rights
10discuss the European Convention on Human Rights 1950
11explain the Human Rights Act 1998
12explain the relationship between the Human Rights Act 1998 and the European Convention on Human Rights 1950
13explain how rights are enforced at different levels.
141 A brief history of human rights
15There are a number of international and domestic legal sources of human rights. Human rights are not a new concept – as will be demonstrated in this section, humanity has enshrined rights in various formats for centuries. As you begin this unit it is important to understand which rights fall into the category of ‘human rights’. Activity 1 requires you to think about what this term actually means.
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17Activity 1 What are human rights?
18You should allow about 15 minutes to complete this activity, including watching the video.
19Think about public discussions on human rights. Take a few moments to write down up to ten rights that you feel fall into the category of human rights.
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21Interactive feature not available in single page view (see it in standard view).
22Now watch this short film, produced by the European Court of Human Rights (ECtHR), and list the rights mentioned in the film. Once finished, compare this list to the ten rights that you felt fell into the category of human rights.
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24Video player: w101_2014j_vwr119-640x360.mp4
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26Show transcript
27Download
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29Interactive feature not available in single page view (see it in standard view).
30Interactive feature not available in single page view (see it in standard view).
31Comment
32The comparison between a personal list of human rights and the simple introduction to rights set out in the film will vary student by student. Your answer depends on your life experiences and your exposure to human rights discussions.
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34The rights introduced by the film include:
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36right to life
37right to education
38freedom of expression
39freedom of assembly and association
40freedom of thought, conscience and religion
41right to marry
42right to respect for your private and family life and home correspondence
43right to free elections
44right to liberty and security
45prohibition against slavery or forced labour
46prohibition against torture
47prohibition against discrimination
48right to a fair trial.
49The film does not provide a complete list of human rights. Your list may have included human rights that were not mentioned in the film.
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51Did you notice that ‘rights’ as indicated in the film are often phrased as prohibitions against certain activities or freedoms to engage in certain activities? The distinction about how human rights are phrased will be examined later in this unit.
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53In the UK, there are a wide range of human rights guaranteed to the people who live within its borders. To better understand the current protection of human rights it is useful to review how this protection evolved over history.
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551.1 Rights through history
56The rights of mankind have been a concern of governments and people under their rule from time immemorial. The concept of rights has not developed in a single clear or progressive path across history, and the law relating to rights has developed in a stilted pattern. This has resulted in certain groups being subject to unequal treatment. For instance, different rights based on social and financial status or property ownership have been set out. Each of the historical contributions in the following timeline served as a building block towards human rights as they are known today.
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58Described image
59View larger image
60Figure 1 Timeline of rights as recognised in law
61Long description
62The Declaration of Arbroath declared:
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64As long as but a hundred of us remain alive, never will we on any conditions be brought under English rule. It is in truth not for glory, nor riches, nor honours, that we are fighting, but for freedom – for that alone, which no honest man gives up but with life itself.
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66(quoted in the National Archives of Scotland, 2012)
67The timeline represents just a few of the instances in history where rights have been considered as part of the political or social consciousness of the age. Many of the rights that we refer to as human rights stem from the specialised laws developed to protect minorities: the development of these laws coincided with the rise of the political state in the seventeenth and eighteenth centuries. For example, the 1688 Bill of Rights in England established a ban on cruel and unusual punishment. Between the eighteenth century and the beginning of the twentieth century, a number of rights-focused declarations were adopted across a variety of states, such as France and the United States. Each consideration of rights moved the world closer to human rights as they are known today.
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691.2 The birth of modern human rights
70The aftermath of the First World War highlighted the continuing problems faced by racial, religious and linguistic minorities (Steiner et al., 2008, p. 96). Following the horrors of the Second World War, the international community came together to form the United Nations (UN) in order to promote peace and human rights. To achieve its aims, the UN adopted the Universal Declaration of Human Rights (UDHR) in 1948. The UDHR is viewed as the beginning of the modern human rights system. It sets out rights shared by all individuals and reflects those rights that had developed over the previous centuries.
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72Described image
73Figure 2 The Universal Declaration of Human Rights
74Long description
75Box 1 The first 10 articles of the UDHR
76Article 1
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78All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
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80Article 2
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82Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.
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84Article 3
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86Everyone has the right to life, liberty and security of person.
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88Article 4
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90No one shall be held in slavery or servitude.
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92Article 5
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94No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
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96Article 6
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98Everyone has the right to recognition everywhere as a person before the law.
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100Article 7
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102All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.
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104Article 8
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106Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
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108Article 9
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110No one shall be subjected to arbitrary arrest, detention or exile.
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112Article 10
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114Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.
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116To view the entire list of rights outlined in the UDHR, visit the UN’s UDHR website.
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118Around 50 countries were members of the UN in its early years. It took 18 months to negotiate the rights outlined in the UDHR. Negotiations were led by Eleanor Roosevelt, widow of the former US President Franklin D. Roosevelt. Much of the negotiations focused on the different view of rights held by democratic and non-democratic states. The differing views centred around the importance placed on civil and political rights by Western states and the importance placed on economic, social and cultural rights by non-Western states. The drafting committee was made up of countries from across the globe, including Australia, Chile, China, France, Lebanon, the USSR, the UK and the US (Krapf, 2013, p. 754). Ultimately, the declaration was adopted unanimously by the UN General Assembly on 10 December 1948 (10 December is now recognised by the UN as ‘Human Rights Day’). As a UN General Assembly resolution, the declaration was viewed as soft law and therefore the UN member states – those states who are legal participants in the UN – do not have to treat the declaration as binding law. However, in the years that followed, the world would be introduced to the power of the human rights movement. Binding international and supranational (regional) human rights law (introduced below) is shaped by the UDHR. At the time of writing, this key human rights document has been translated into 419 languages.
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120Activity 2 The origins of human rights
121You should allow about 5 minutes to complete this activity.
122Access the journal article by M.R. Ishay (2004) ‘What are human rights? Six historical controversies’, Journal of Human Rights, vol. 3, no. 3, pp. 359–71.
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124Read the section entitled ‘The first controversy: the origins of human rights’ (pp. 360–62).
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126As you read, consider the political, religious and social histories that fed into the UDHR. Does reflecting on history make you more or less confident about the existence of ‘universal’ human rights?
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128Interactive feature not available in single page view (see it in standard view).
129Comment
130There is no correct answer. Taking a few moments to consider the wide range of political, religious and social beliefs and practices that led to the UDHR will prepare you for a focus on the legal importance it has played in the protection of human rights. It will also be an aid for explaining why certain rights are difficult to define.
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1322 What are human rights?
133Recalling your answers in Activity 1, it is important to understand exactly what legal rights are covered by the term ‘human rights’. The term ‘human rights’ is often splashed across the newspapers in ways that make it difficult to determine whether these rights are a positive or negative contribution to society.
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135The human rights framework protects us from torture and slavery, unlawful punishment and arbitrary detention. It requires that all people receive equal treatment under the law. Respect for private and family life and freedom of thought, conscience and religion are all protected as human rights. These protections are the result of a long struggle by millions of individuals and understanding human rights aids in distinguishing the law from the tabloid hyperbole.
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137The idea that all people are protected by human rights, no matter how unethical or criminal the person, is one of the most difficult concepts to accept for many people. Violent murderers, terrorists and sex-offenders are entitled to equal protection under the law, just as the purest of children or civic-minded individuals are protected by the law. This is tied to the principle that all government actions must respect human dignity.
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139Defining human rights
140Human rights can be described as both natural and legal rights, depending on which right is being considered. They are often described as inalienable, universal and interdependent, and mark out the notion that common humanity is shared across the globe; this would suggest that they are natural rights. Natural law theorists say that human rights belong to people by virtue of their humanity, thus emphasising the self-evident and inalienable nature of these rights (Feuer, 2002, p. 340). Opponents of natural law insist that rights only become reality when laid down in law.
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1422.1 Formulating human rights
143Human rights can also be identified by the way in which they follow a particular construction formula. These different formulations include absolute, limited and qualified rights: each form speaks to the potential of the right to be restricted. Absolute rights are those which can never legally be breached and from which no deviation may be made – for example, the prohibition against torture. Limited rights are those where the limitations on the right are specifically contained within the right. Qualified or general rights are those which are subject to general qualifications; for example, freedom of expression can be limited in law to prevent a person from publishing false statements about another person in the newspaper or other publication – a concept known as libel.
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145Table 1 gives examples of each formulation taken from the European Convention on Human Rights (ECHR) 1950. Each of the examples is followed by a demonstration of how the right has been limited or breached in the UK.
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147Table 1 Different formulations of rights
148Type of right	Description and example
149Absolute rights	
150Must be observed by the state in all circumstances. They may never be breached or limited.
151Example: ‘No one shall be held in slavery or servitude’ (Article 4 ECHR).
152In 2013, three women were rescued from a home in London following reports that they were being held against their will. A couple was charged with slavery and forced labour.
153Limited rights	
154Have specific limitations that are acceptable. The limitations are typically set out with the right.
155Example: ‘Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court’ (Article 5 ECHR).
156Aaron De Silva was sentenced to life for the murder of a 73-year-old man in Fulham in February 2014.
157Qualified rights	
158May be restricted to protect the rights of others or for the public interest.
159Example: ‘Everyone has the right to freedom of peaceful assembly ... No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society’ (Article 11 ECHR).
160To hold a protest, rally or parade – such as that held by the Space for Cycling Campaign in 2013 – the organisers must apply for permission from the council or relevant authority.
161Most human rights are qualified rights – they are susceptible to limitation as long as proper democratic processes are followed and the limitation is only to the extent necessary to achieve a specific goal, typically for the public interest or to protect the rights of others.
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1632.2 Categories of human rights
164All human rights are based on the idea that government is limited by the minimum rights of individuals. The terms rights and freedoms are used interchangeably to refer to human rights. They can be loosely separated into a number of different categories including civil, political, economic, social and cultural rights. Click on each box in Figure 3 to learn about these different categories.
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166Figure 3 Different categories of rights
167Interactive feature not available in single page view (see it in standard view).
168The different categories of rights were first outlined by the UDHR.
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170Typically, civil and political rights are grouped together while economic, social and cultural rights form a second group, with the former identified as first generation rights and the latter as second generation rights. The generational distinction is not necessarily a positive way to think about rights and it is often claimed that it links to different episodes in history when rights were disputed, which you will read more about in Activity 4. Grouping rights into two categories does, however, allow for easier identification, though many of the rights could easily fall into multiple categories. Contemporary human rights discussions stress that all human rights are indivisible, interdependent and interrelated (Article 5 Vienna Declaration and Programme of Action 1993). For example, an individual needs an education that delivers basic literacy (second generation right) in order for an individual to exercise the right to vote (first generation right), which includes being able to read a ballot.
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172There is growing recognition of a further category of rights which includes such concepts as environmental rights and the right to development as well as the right to intergenerational equity. However, for the purposes of W101, these ‘third generation’ rights do not need to be examined in more detail.
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174Activity 3 Which rights?
175You should allow about 5 minutes to complete this activity.
176The following rights represent some examples of civil and political rights and social, economic and cultural rights. Drag each right to the appropriate category.
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178Interactive feature not available in single page view (see it in standard view).
179Comment
180If you were not able to categorise each right into a single category, do not worry! Most human rights are interrelated and to ensure that the right is protected it must be approached from many angles.
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1822.3 International protection of human rights
183The rights set out in the UDHR have been legalised in treaties creating binding international and regional (supranational) human rights obligations. Treaties are agreements between states that outline their legal obligations, much like contracts. You were introduced to the concept of a treaty as a source of law with the discussion of the ECHR in Unit 1. The International Covenant on Civil and Political Rights (ICCPR) 1966 , the International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966 and the UDHR are often referred to as the International Bill of Human Rights. Though the ICCPR and the ICESCR were not the first international human rights treaties – they were preceded by the International Convention on the Elimination of all forms of Racial Discrimination 1966 – the rights that they protect are those rights specifically debated for inclusion in the UDHR. At the time of writing, there are nine treaties that make up the foundation of the international human rights system:
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185International Covenant on Civil and Political Rights 1966
186International Covenant on Economic, Social and Cultural Rights 1966
187International Convention on the Elimination of all forms of Racial Discrimination 1966
188Convention on the Elimination of all forms of Discrimination Against Women 1979
189Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984
190Convention on the Rights of the Child 1989
191International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families 1990
192Convention on the Rights of Persons with Disabilities 2006
193International Convention for the Protection of All Persons from Enforced Disappearance 2006.
194Each of the treaties reflects the UDHR and builds upon the principles outlined in 1948. These treaties provide more detailed obligations on the protection of specific categories of rights or categories of people.
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196The sources of human rights law are often thought of as filtering down from the international treaties to the domestic level, though many human rights will already be protected by domestic law. Obligations are debated, agreed and adopted by states. States that ratify international human rights treaties and supranational (regional) treaties are obliged to give effect to those rights in domestic law. Supranational human rights treaties, e.g. the ECHR, closely correspond to the rights set out in the ICCPR and ICESCR. All of the states that have signed up to the ECHR have also signed the ICCPR and ICESCR. Each of these treaties is a source of law which guides states on the protection of human rights, such as freedom from torture. The right to be free from torture is so important that it is covered by many international treaties and domestic laws. This human right is not achieved simply by prohibiting the act of torture but also requires a holistic approach that includes taking preventative measures and proscribing the use of evidence obtained by torture.
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1982.4 Case study: torture
199The right to be free from torture is one of the most widely discussed human rights. The prohibition is clearly outlined in international, supranational and most domestic legal systems. For example, Article 7 ICCPR outlines that ‘no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’. The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 focuses on the eradication of torture and associated conduct, and provided the first international legal definition of torture:
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201any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
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203(Article 1 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984)
204It further states:
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206No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture.
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208(Article 2(2) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984)
209The definition of torture is broad and non-specific so that it can be interpreted to cover a wide range of treatments which may be classed as torture. While some treatment can clearly be classified as torture, it is less clear whether other treatment amounts to torture or a lesser form of prohibited treatment.
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211Box 2 What is torture?
212Certain types of treatment appear objectively to fall into the category of torture – for example, electric shocks to the genitals, or the pulling out of fingernails. Torture is not, however, limited to such familiar examples – it encompasses many forms of suffering, both physical and psychological in nature. It is particularly important not to forget about psychological forms of ill-treatment – very often these can have the most long-lasting consequences for victims, who may recover from physical injuries yet continue to suffer from deep psychological scarring. Forms of ill-treatment which have been found to amount to torture, either alone or in combination with other forms of treatment, include:
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214Falaka/falanga: beatings on the soles of the feet
215Palestinian hanging: suspension by the arms while these are tied behind the back
216Severe forms of beatings
217Electric shocks
218Rape
219Mock executions
220Being buried alive
221Mock amputations
222There are, however, also many ‘grey areas’ which do not clearly amount to torture, or about which there is still disagreement, but which are of great concern to the international community. Examples include:
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224Corporal punishment imposed as a judicial penalty
225Some forms of capital punishment and the death-row phenomenon
226Solitary confinement
227Certain aspects of poor prison conditions, particularly if combined
228Disappearances, including their effect on the close relatives of the disappeared person
229Treatment inflicted on a child which might not be considered torture if inflicted on an adult
230(Giffard, 2000, pp. 13–14)
231The language of prohibition, as seen in Article 7 ICCPR and throughout the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, illustrates that torture is never permitted under any circumstances. The prohibition against torture is also outlined in the UDHR (Article 5). At the European supranational level there is a corresponding prohibition included in the ECHR (Article 3). The prohibition of torture impacts on other legal issues, such as the evidence that can be used during a trial as well as the capacity of states to deport or extradite individuals to other states where they may be at risk of torture. For example, if a person is tortured and confesses to a crime as a result of the torture, the prohibition against torture says that that confession may not be used against the person in court. The extension of the prohibition against torture to other legal issues will be further considered in the review of the Othman (Abu Qatada) case in the next subsection.
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233The UK ratified – gave its formal consent to – the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 1988. In doing this, the UK agreed to create legislation that reflects the rules created by the Convention (Article 2(1)). In Unit 4 you were introduced to the process of making legislation and how that is the only way to create statutes in the UK.
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235Though the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 has not been officially incorporated into UK law, torture is criminalised by s134 Criminal Justice Act 1988. The obligations owed under the Convention remain international obligations for the UK, though they are not directly enforceable at the domestic level.
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237Box 3 Section 134 Criminal Justice Act 1988
238134 Torture
239(1) A public official or person acting in an official capacity, whatever his nationality, commits the offence of torture if in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another in the performance or purported performance of his official duties.
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241(2) A person not falling within subsection (1) above commits the offence of torture, whatever his nationality, if –
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243a.in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another at the instigation or with the consent or acquiescence –
244i.of a public official; or
245ii.of a person acting in an official capacity; and
246b.the official or other person is performing or purporting to perform his official duties when he instigates the commission of the offence or consents to or acquiesces in it.
247(3) It is immaterial whether the pain or suffering is physical or mental and whether it is caused by an act or an omission.
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249(4) It shall be a defence for a person charged with an offence under this section in respect of any conduct of his to prove that he had lawful authority, justification or excuse for that conduct.
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251(5) For the purposes of this section ‘lawful authority, justification or excuse’ means –
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253a.in relation to pain or suffering inflicted in the United Kingdom, lawful authority, justification or excuse under the law of the part of the United Kingdom where it was inflicted;
254b.in relation to pain or suffering inflicted outside the United Kingdom –
255i.if it was inflicted by a United Kingdom official acting under the law of the United Kingdom or by a person acting in an official capacity under that law, lawful authority, justification or excuse under that law;
256ii.if it was inflicted by a United Kingdom official acting under the law of any part of the United Kingdom or by a person acting in an official capacity under such law, lawful authority, justification or excuse under the law of the part of the United Kingdom under whose law he was acting; and
257iii.in any other case, lawful authority, justification or excuse under the law of the place where it was inflicted.
258(6) A person who commits the offence of torture shall be liable on conviction on indictment to imprisonment for life.
259
260The prohibition against torture exists at the national, supranational and domestic level.
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2622.4.1 Terrorism and torture
263Terrorism has impacted the way many states enforce the prohibition against torture. Following major terrorist incidents, such as 11 September 2001 in the US and 7 July 2005 bombings in London, many states began to question the limits of the prohibition against torture particularly in relation to combating international terrorism. States that had formerly been strong supporters of the ban on torture began to demonstrate a more relaxed approach to torture in other places. This more laid-back approach is generally linked to concern for national security. However, the tension between maintaining the ban on torture and ensuring national security demonstrates the difficulty of the issue of human rights. Protecting rights is not always easy as it means protecting those who are often despised by society and governments. The UK, for example, has been criticised by civil society organisations for taking a more relaxed approach to the prohibition against torture when dealing with suspected terrorists (Human Rights Watch, 2006).
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265Box 4 Othman (Abu Qatada) v United Kingdom [2012] 55 EHRR 1
266The recent case of Othman (Abu Qatada) v United Kingdom (8139/09) [2012] 55 EHRR 1, 17 January 2012 demonstrated the challenge that states face in upholding the prohibition against torture and its wide-ranging implications.
267
268Abu Qatada, a radical Muslim cleric, was convicted for various terrorist offences in his native Jordan during a trial for which he was not present. He alleged that some of the evidence used against him was obtained through the torture of other defendants. He was granted temporary refugee status in the UK in 1994 and later applied for indefinite leave to remain. In 2002, during the time in which his application was being processed, he was arrested under the Anti-terrorism, Crime and Security Act 2001 (which has now been repealed). In 2005 he was released and placed under a control order under the Prevention of Terrorism Act 2005, at which point the UK government began deportation proceedings to Jordan. A control order puts a suspected terrorist under close supervision, which is almost the equivalent of being under house arrest.
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270Before commencing the deportation process the UK agreed a Memorandum of Understanding (MOU) with the government of Jordan that Qatada would not be subjected to torture or any other ill-treatment in an effort to fulfil its obligations under Article 3 ECHR.
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272Qatada challenged the deportation order but the House of Lords upheld the order in 2009. Qatada then brought his case before the ECtHR where the Court found that Qatada could not lawfully be deported to Jordan. The primary issue was whether the MOU with Jordan – which is a political agreement with no binding legal authority – was sufficient to remove any real risk of torture as demanded by Article 3. The second issue was whether an ECHR state could deport an individual to a non-ECHR state where the individual may not be able to receive a fair trial in line with Article 6 ECHR (right to a fair trial). This issue related to the fact that evidence obtained through torture might be used against Qatada. The UK argument centred on the need to protect its national security by removing Qatada from its soil.
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274The Court’s decision outlined that the MOU was sufficiently detailed to fulfil the UK’s Article 3 duty to prevent torture under the ECHR. Where the Court found it necessary to rule against the UK related to the Article 6 right to a fair trial. It determined that the real risk of torture evidence being admitted in Jordan against Qatada if he was deported would violate Article 6. This reflects the prevention of using evidence obtained by torture in the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (Article 15). The decision clarifies that national security concerns will not alleviate states of their duty to prevent and protect against torture both directly and indirectly.
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276Qatada ultimately returned to Jordan.
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2782.5 The contested nature of human rights
279The UDHR was drafted around four pillars – dignity, liberty, equality and brotherhood – and its articles were divided among these four pillars (Ishay, 2004, p. 359). This division reflects the focus of rights since the first consideration of human rights. Each pillar represents an ideal that is considered essential to the enjoyment of an individual’s life in their community. Protected human rights link back to these pillars.
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281Dignity – all people may exercise the same rights, to the same extent, and may not be stopped from exercising a right on the basis of any personal characteristic, such as gender, race, religion or sexuality
282Liberty – to interact in society is reflected in the right to vote or assemble in groups
283Equality – speaks to second generation rights, such as the right to education or the right to work – introduced in Activity 3
284Brotherhood – relates to community and solidarity.
285(Ishay, 2004, p. 359)
286Though these have been long-standing pillars, it does not mean that there is absolute agreement on these four pillars being the only encapsulation of rights. An argument often lodged against international human rights is that they reflect the ideals of capitalist, Western societies. Many cultures maintain different views of rights, particularly those that are traditionally not in a free-market economy or that are governed by non-democratic traditions or religious laws. In fact, social scientists have long pointed out that many cultures, such as the Mayans of Central America, do not actually have a word that translates into anything resembling ‘rights’ (Pitarch et al, 2008).
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288In some Hasidic Jewish communities it is accepted that the sexes are not equal in the exercise of certain rights. Women and men have long been segregated in public, even in such situations as walking along the street (Zeveloff, 2011). This attitude does not leave much space for members of the community who disagree with segregation and support equality between the sexes.
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290Human rights are complicated because every individual has a different view about what rights are and how they should be protected. These views are influenced by upbringing, culture, religion, friends and family, among other factors. The most difficult aspect of freedom has always been that the concept requires us to recognise that other people have ideas that may not align with our own. This tension is demonstrated by movements underway to try and reframe certain civil rights, such as the right to private life as exercised by members of the lesbian, gay, bisexual and transsexual community, as infringements of religious freedom (Michaelson, 2013). The landscape of rights is continually shifting and it is often impossible to anticipate every conceivable way in which a culture, or an individual, will view rights. The point of universal human rights is that at their core they can be given context no matter the culture. The contested nature of rights in the UK will be analysed below, particularly the tension between continental European and British interpretations of rights.
291
292Activity 4 The four pillars of human rights
293You should allow about 10 minutes to complete this activity.
294Access the journal article by M.R. Ishay (2004) ‘What are human rights? Six historical controversies’, Journal of Human Rights, vol. 3, no. 3, pp. 359–71 (used in Activity 2).
295
296Read the first three paragraphs (pp. 359–60).
297
298Do you feel that rights are enjoyed by all individuals in line with the four pillars? Do you think that one of the pillars should be regarded as more or less important than other pillars?
299
300Interactive feature not available in single page view (see it in standard view).
301Comment
302There is no correct answer. The point of this exercise is for you to reflect on the theory behind the UDHR and recognise that not all people agree with this structure of human rights. It is also intended to demonstrate that even if there is disagreement, all four pillars are essential to a universal concept of human rights.
303
3043 The European Convention on Human Rights
305Following the Second World War, European states took steps to create greater protections for individuals against the state. These steps closely tracked those that led to the UDHR. On 4 November 1950, the ECHR was agreed and signed by many European states (see Figure 4), with the hope that it would be the end of brutalities against humans, such as those carried out during the war. It took effect three years later on 3 September 1953. The ECHR reflected the rights set out in the UDHR and made a large number of human rights enforceable as international obligations between the European states that became a party to it – the ‘states parties’. As with all human rights treaties (treaty and convention are interchangable words in law), the ECHR provides the basic outline of a wide range of rights, and these rights are then interpreted by courts.
306
307Described image
308Figure 4 European Convention on Human Rights
309Long description
310A state party – a state that has formally committed to a treaty – to the ECHR should secure the rights for all of the people who live in its borders by altering its laws or enacting new laws, policies and practices that are compatible with the ECHR (Article 1). The ECHR also requires states to provide an effective remedy in court for any ECHR violations (Article 13). In addition to remedy in domestic courts, ECHR states must allow any individual to take their grievance to the ECtHR if they are unable to get just satisfaction from a domestic court (Article 34) and states also commit to accept and implement judgments by the Court.
311
312As society evolves, human rights evolve, which is why the ECHR and other human rights treaties are referred to as ‘living instruments’. Globalisation and technology also influence the way that rights are interpreted and expanded. When the ECHR was agreed in 1950, mobile phones and computers did not exist, though today they are indispensable objects of everyday life. These items have changed the scope of the right to respect for private and family life, home and correspondence (Article 8 ECHR). Privacy in correspondence is no longer limited to letters and landline phone conversations. Texts, emails, and the like are now very common means of communicating and therefore the right to privacy has expanded to include correspondence using new forms of technology. The following section will introduce how violations of human rights are dealt with at the European regional level.
313
3143.1 The European Court of Human Rights
315When rights established in the ECHR are alleged to have been violated, individuals may apply to have their case heard by the ECtHR. Sitting in Strasbourg, the ECtHR is the primary enforcement mechanism of ECHR rights. Each state that is party to the ECHR has a judge on the Court. Over 822 million European citizens from Council of Europe member states have the right to directly petition the ECtHR. In 2013 there were approximately 65,900 applications filed with the Court compared to 28,200 just ten years ago (ECtHR, 2014). Protocol 14, which came into effect in 2010, has simplified the filtering process in order to improve the efficiency of the Court under its ever-growing case load.
316
317To petition the ECtHR for a human rights violation an applicant must meet the following criteria:
318
319The applicant must have exhausted domestic remedies; that is, have a ruling from the highest court of state (discussed in Section 5).
320The applicant must apply within six months of the final decision at the domestic level.
321Complaints must be based on ECHR articles, not domestic or other international human rights laws.
322The state against which the complaint is directed must be a party to the ECHR, which includes all 47 Council of Europe member states.
323If the case makes it to a final judgment, finding a violation, then the judgment will be executed by the Committee of Ministers. Satisfaction of the judgment will be monitored and examined by the Committee until there is a final resolution.
324
325This chart  tracks the life of an application as it travels from domestic courts to Strasbourg.
326
3273.2 Margin of appreciation
328The ECHR applies to 47 states, each with a different social and legal history. The ECHR recognises that each state must be able to give effect to rights in different ways in order to reflect the social values and policy considerations of each distinct society. This principle is referred to as the ‘margin of appreciation’. On most issues, the margin of appreciation given will be wide. However, where there is a ‘European consensus’ – clear agreement across the majority of the European states – the margin will be much narrower.
329
330Box 5 Karner v Austria [2003] ECHR 395
331In Karner v Austria [2003] ECHR 395 the ECtHR considered the unequal treatment of the surviving partner in a dispute over the succession of a lease following the death of the original lessee. The Austrian Supreme Court had ruled that the Rent Act (Austria) applied only to heterosexual life companions. The ECtHR found that the different treatment of same-sex partners from heterosexual partners fell outside the narrow margin of appreciation that is mandatory when treating individuals differently based on sex.
332
333The aim of protecting the family in the traditional sense is rather abstract and a broad variety of concrete measures may be used to implement it. In cases in which the margin of appreciation afforded to States is narrow, as is the position where there is a difference in treatment based on sex or sexual orientation, the principle of proportionality does not merely require that the measure chosen is in principle suited for realising the aim sought. It must also be shown that it was necessary in order to achieve that aim to exclude certain categories of people – in this instance persons living in a homosexual relationship – from the scope of application of section 14 of the Rent Act. The Court cannot see that the Government have advanced any arguments that would allow such a conclusion.
334
335(Karner v Austria, para. 41)
336The Court’s decision reflected the wide recognition across Europe that individuals should not suffer discrimination based on sexual orientation.
337
3383.3 The UK and the European Court of Human Rights
339The UK was one of the first states to ratify the ECHR in 1950, which means it was one of the first to agree to be legally bound by the ECHR. As part of the ECHR system, the UK may be brought before the ECtHR by individuals alleging that their ECHR rights have been violated. Between 1959 and 2013 the ECtHR delivered 499 decisions regarding the protection of ECHR rights in the UK. This table  provides an overview of the states and rights that have been challenged before the Strasbourg court.
340
341As the table demonstrates, appearances before the ECtHR vary greatly among the states as does the range of rights alleged to have been violated. While the UK has been subject to 499 judgments, the ECtHR found the UK in violation of the ECHR on only 297 occasions which demonstrates a much lower violation percentage when compared to many other states.
342
343Activity 5 Getting to Strasbourg
344You should allow about 15 minutes to complete this activity.
345Use the database JustCite to find Othman (Abu Qatada) v United Kingdom (8139/09) [2012] 55 EHRR 1, 17 January 2012. (See Finding a case using JustCite if you would like a reminder of how to do this.)
346
347Choose the third report, ‘European Human Rights Reports’, to open the report in Westlaw. Read paragraphs H6 and H7 at the beginning of the case analysis and note how many court decisions were reached before Othman (Abu Qatada) was able to have his case heard before the ECtHR.
348
349Interactive feature not available in single page view (see it in standard view).
350Comment
351Othman (Abu Qatada) appealed to the UK Special Immigration Appeals Commission (SIAC) following notice that he was to be deported. The appeal was dismissed in a judgment delivered by SIAC.
352Othman (Abu Qatada) appealed the SIAC decision at the Court of Appeal which allowed the appeal on issues relating to violation of Articles 3 and 6 ECHR and denied it on other ECHR rights.
353The Secretary of State and Othman (Abu Qatada) cross-appealed to the House of Lords and it allowed the Secretary of State’s appeal and dismissed Othman’s appeal.
354This case demonstrates that the road to Strasbourg is not a fast-track. Individuals who claim to have been the victim of a human rights violation must exhaust all of the proper domestic courts before reaching Strasbourg. Considering the number of cases that are reviewed by Strasbourg each year, the number of domestic cases that must take place first is substantial. The necessity of exhausting the domestic system first is not only time consuming, it is expensive and often means that accessing the ECtHR is not an option.
355
3564 The Human Rights Act 1998
357At the domestic level, human rights can be described as a contract between the individual and the state as a means of regulating the interaction between them. This contract places the state as the duty-bearer – the one with the obligation to protect and respect human rights – and places the individual as the rights holder – i.e. the individual whose human rights are protected. This approach to human rights comes from a specific conceptual framework of human rights called a human rights-based approach and is the basis of the Human Rights Act (HRA) 1998.
358
359Human rights law protects individuals from abuses of power by the government. Many individuals and agencies work on behalf of the government so the duty applies to a large number of people in every agency that is an extension of the government. This is often referred to as the ‘horizontal’ application of human rights. However, it only applies to individuals who are actually acting on behalf of the government, not those who are acting in a personal capacity. To illustrate this idea, the UK has an obligation to protect the right to life for every individual in the UK. If David kills Bill, David has committed murder – a crime, not a human rights violation. If David is a police officer and killed Bill in the course of arresting him, then a human rights violation has occurred, though there may be mitigating circumstances, such as self-defence.
360
361Activity 6 Taking liberties
362You should allow about 15 minutes to complete this activity.
363Listen to Ian Cooke's British Library podcast on the Human Rights Act 1998.
364
365After listening to the podcast do you think that we should consider having a British Bill of Rights?
366
367Interactive feature not available in single page view (see it in standard view).
368Comment
369Answers will vary from student to student. In the 2015 Conservative Party election manifesto there was a proposal to replace the Human Rights Act 1998 with a British Bill of Rights. At the time of writing, the Bill has not been published but it is expected. Once it has been published, review the Bill and consier whether it enhances or departs from the standards currently recognised.
370
3714.1 Domestic protection before the HRA 1998
372The HRA 1998 was not the beginning of human rights protection in the UK. Prior to its enactment on 2 October 2000 there were a range of common laws and statute laws that protected people and their property, such as those you studied in Units 4 and 6. It was often stated that ‘silence of the law’ on rights created a ‘presumption of liberty’ that did not require changing the UK’s constitutional arrangements to accommodate specific human rights.
373
374The common law of the UK protects many of the values that underpin human rights. Though this protection has not been consistent, it has at times been strong, particularly through the use of equity to protect dignity and ensure fairness. Acts of Parliament have also protected ‘human rights’ in some form or another throughout the UK’s history. Ultimately, the disparity between the rights protected at the European level and those actionable at the domestic level as ‘human rights’ began to reveal gaps in UK domestic law. For example, though the concept of equality existed in the UK long before the HRA 1998 and an international legal obligation owed by the UK as a party to the ECHR, there is substantial evidence that neither UK statute law nor the common law adequately protect equality in all circumstances.
375
376Described image
377Figure 5 A sex-divided corporate ladder
378Long description
3794.1.1 Case study: women’s emancipation
380The history of women’s suffrage in the UK reflects not only the evolution of society but also of its legal system. Women were not prohibited from voting by law until the 1832 Reform Act. Prior to the 1830s, voting in the UK was determined differently in each locality and was contingent on property ownership or the payment of various taxes but no barriers to voting were based solely on sex. Not every locality was even represented in Parliament. Though many women may not have availed themselves of the right to vote prior to the Act, the deliberate disenfranchisement of women, along with a large percentage of the adult male population (roughly 82%), set the wheels in motion for future parliamentary reform.
381
382Some 40 years later the suffragettes started campaigning to remedy this inequality, though it was not redressed until 1918 by the Representation of the People Act and even then only for women over the age of thirty who met certain property ownership requirements. Equal voting rights among the sexes in the UK were not granted until 1928 when a new Representation of the People Act was passed.
383
384An equal vote was not the final step in the struggle for women’s emancipation. Access to education, equal pay for equal work and recognition of the value of a woman’s role in the home were just a few of the issues facing women from the turn of the twentieth century. In the 1970s and 1980s women continued to strive for equality with men on many fronts. The Sex Discrimination Act 1975 and the Equal Pay Act 1970 were passed by Parliament to resolve some of these issues. However, the law took much longer to remedy other issues, such as disregard for sexual and domestic violence against women. The struggle for equality between the sexes is a movement that, despite many advances in the law, continues today.
385
386Activity 7 Equal pay for equal work
387You should allow about 5 minutes to complete this activity, including listening to the audio.
388Listen to this brief audio ‘Equal pay for women’.
389
390Audio player: w101_2014j_aug106.mp3
391
392Show transcriptDownload
393 
394Interactive feature not available in single page view (see it in standard view).
395Think about how long the struggle for equality among the sexes has been going on. Is it a problem that can be resolved by law, or is it necessary to wait for society to change its view? What do you think the majority of society feels about equal pay? Do you think women could do more to improve the issue of equal pay?
396
397Interactive feature not available in single page view (see it in standard view).
398Comment
399The problem of equal pay for equal work is one that is not easily resolved. Despite strong domestic laws designed to protect against discriminatory treatment based on gender, reports of unequal treatment remain widespread. Many women do not feel they can make a claim for pay discrimination because of the backlash it may cause within their work environment. This is particularly true during an economic downturn. Many women feel they should simply be happy that they have a job. This demonstrates the distance that often exists between the law and reality for many individuals in the UK.
400
4014.2 Bringing rights home – the HRA 1998
402In Unit 4 you learnt about parliamentary sovereignty and how international treaties do not become part of UK law unless they are incorporated by Parliament. The HRA 1998 incorporated the majority of the ECHR so that the rights protected at the supranational level would also be part of UK domestic law. The significant difference in human rights protection that was introduced by the HRA 1998 is that it ensures that individual rights cannot be arbitrarily curtailed or suspended by the government. In other words, it made the ECHR rights that UK people already had directly accessible in its domestic courts and placed positive obligations on the government to consider ECHR rights when introducing any new legislation.
403
404The aims of the HRA 1998 include:
405
406to develop a culture of human rights across the UK
407to increase the international standing of the UK
408to strengthen the representative and democratic government
409to create a better relationship between the government and its people.
410In short, the HRA 1998 ‘commits the UK to a distinctively democratic human rights culture’ (Hunt, 2010, p. 603). By incorporating the majority of the ECHR rights into UK domestic law, people in the UK are guaranteed access to a court to enforce these rights. The HRA 1998 also sets out specific rules for Parliament in relation to the adoption of future statutes to ensure that human rights are always given proper consideration. The HRA 1998 was designed to provide a clearer picture to the people of the UK about how the government approaches human rights issues. By incorporating the ECHR rights the UK also took a position shoulder-to-shoulder with fellow states in the ECHR system that had already given the ECHR full recognition in their domestic systems.
411
412The HRA 1998 did not import the ECHR in its entirety into UK domestic law but instead selected the following articles from the ECHR and its First and Thirteenth Protocols:
413
414ECHR	First Protocol	Thirteenth Protocol
415Article 2 – Right to life	Article 1 – Protection of property	Article 1 – Abolition of the death penalty
416Article 3 – Prohibition of torture	Article 2 – Right to education	 
417Article 4 – Prohibition of slavery and forced labour	Aritcle 3 – Right to free elections	 
418Article 5 – Right to liberty and security	 	 
419Article 6 – Right to a fair trial	 	 
420Article 7 – No punishment without law	 	 
421Article 8 – Right to respect for private and family life	 	 
422Article 9 – Freedom of thought, conscience and religion	 	 
423Article 10 – Freedom of expression	 	 
424Article 11 – Freedom of assembly and association	 	 
425Article 12 – Right to marry	 	 
426Article 14 – Prohibition of discrimination	 	 
4274.3 Relationship of the HRA 1998 to the ECHR
428The HRA 1998 outlines its relationship to the ECHR. The most obvious change is that those rights identified as being incorporated are now legally enforceable in the UK domestic court system and must be considered in the development of all new statute law. While ECHR rights are given direct effect through the Act, it does not clarify the intricate relationship between the supranational and domestic legal systems that protect the ECHR rights. The more important consideration is how Strasbourg interprets rights in order to reflect the collective conscience of all the 47 states that participate in the ECHR system as members of the Council of Europe.
429
430The margin of appreciation (introduced in Section 3.2) is an essential part of the relationship between the ECtHR and individual states. The same is true for the UK – the ECtHR gives the UK discretion in the protection of ECHR rights unless there is widespread recognition across Europe about the interpretation of a particular right, such as in the rights of same-sex couples as discussed in the Karner case. In bringing ECHR rights into domestic law the UK committed itself to taking ECtHR interpretations of those rights into account when creating law and enforcing rights.
431
432Section 2 HRA 1998 demonstrates the active consideration that UK courts must give to the ECtHR or other designated Council of Europe organs. The fact that UK domestic law creates this obligation is often overlooked.
433
434Box 6 Section 2 HRA 1998 – Interpretation of Convention rights
435A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any –
436a.judgment, decision, declaration or advisory opinion of the European Court of Human Rights,
437b.opinion of the Commission given in a report adopted under Article 31 of the Convention,
438c.decision of the Commission in connection with Article 26 or 27(2) of the Convention, or
439d.decision of the Committee of Ministers taken under Article 46 of the Convention –
440whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.
4414.3.1 Key features of the HRA 1998
442Statement of compatibility
443A major feature of the HRA 1998 is the s19 requirement that all new legislation must include a statement of compatibility with the ECHR rights incorporated through the Act. There is no set length for this statement, or information that must be included, and the statements are generally very brief and simply state that the minister proposing the legislation has considered whether the proposed Act is compatible with the HRA 1998 and, if not compatible, that the incompatibility is recognised and the bill should proceed. While the statements may be brief, the point is to ensure that human rights are considered in relation to all new law. This statement of compatibility  was issued when the Minister for Employment Relations and Postal Affairs proposed the Leeds City Council Bill and Reading Borough Council Bill.
444
445Interpretation of Convention rights
446Section 3 HRA 1998 requires UK courts to interpret legislation compatibility with the ECHR, whenever it is possible. As noted by Lord Irvine in 2003, this approach was (and still is) considered
447
448a new and powerful tool of interpretation and that is exactly what it was intended to be. Where the ordinary, or accepted, meaning of a statute would give rise to an incompatibility, the courts must use s.3 to look for other possible meanings that are compatible. But if that is impossible they must consider turning to s.4 and issuing a declaration of incompatibility.
449
450(Lord Irvine, 2003 p. 319)
451Declarations of incompatibility have rarely been issued since the HRA 1998 took effect in October 2000. As of 2011, only 19 declarations had become final (one of which will be examined in Activity 9) and in all instances Parliament took or was taking action to correct the incompatibility (Ministry of Justice, 2011, p. 29).
452
4534.4 Other domestic sources of human rights law
454Human rights principles are protected both directly and indirectly across a range of Acts of Parliament. For example, the Equality Act 2010 extended and consolidated the duty of non-discrimination as a principle. In other words, it is designed to bring together all legal measures aimed at protecting individuals from different treatment based on any characteristic including gender, race, religion, disability, sexual orientation or any other identifiable characteristic. Discrimination is when different treatment of individuals is not reasonably justified. The principle applies not only to the government, but to other organisations in society, such as certain businesses. In the UK, however, the principle of non-discrimination and some other human rights have been legislated upon so they are enforceable in court, but not as human rights violations. For example, discrimination by an employer is actionable under the Equality Act 2010, not the HRA 1998. Even where an Act does not specifically reference human rights all new legislation must consider its impact on human rights across the UK.
455
456Activity 8 Ensuring equality
457You should allow about 10 minutes to complete this activity.
458Read the Long Title to the Equality Act 2010 below:
459
460An Act to make provision to require Ministers of the Crown and others when making strategic decisions about the exercise of their functions to have regard to the desirability of reducing socio-economic inequalities; to reform and harmonise equality law and restate the greater part of the enactments relating to discrimination and harassment related to certain personal characteristics; to enable certain employers to be required to publish information about the differences in pay between male and female employees; to prohibit victimisation in certain circumstances; to require the exercise of certain functions to be with regard to the need to eliminate discrimination and other prohibited conduct; to enable duties to be imposed in relation to the exercise of public procurement functions; to increase equality of opportunity; to amend the law relating to rights and responsibilities in family relationships; and for connected purposes.
461
462(Equality Act 2010)
463Using JustCite, find the Equality Act 2010 and read s4 Equality Act 2010, which outlines a number of characteristics that are protected. (See Finding a case using JustCite if you would like a reminder of how to do this). Select five of the characteristics and for each characteristic write a sentence on how you think discrimination might occur today in the UK. There are no right answers here and you may find that your responses and selections are considerably different from those of your fellow students.
464
465Interactive feature not available in single page view (see it in standard view).
466Comment
467You may have written down something similar to the points below for each characteristic:
468
469Age
470A common area where individuals suffer discrimination based on age is in the job market.
471
472Disability
473If a child with a disability is not given extra assistance so that they can attend school, this is discrimination.
474
475Gender reassignment
476If a person who has had gender reassignment surgery is prevented from changing their sex on a driving licence, this is discrimination.
477
478Marriage and civil partnership
479A couple in a civil partnership are being discriminated against if they are not given the same rights to succession in a tenancy agreement as a married couple.
480
481Pregnancy and maternity
482If a woman is overlooked for a promotion at work due to pregnancy, this is discrimination.
483
484Race
485If a nurse will not tend to a patient because of her skin colour, she is discriminating against the girl.
486
487Religion or belief
488If a man wearing a turban is stopped for questioning without cause, he is suffering discrimination.
489
490Sex
491A common example of discrimination is when a woman receives less pay for doing the same amount of work as a male counterpart. This problem has existed for many decades and though law has been passed to correct this type of injustice, such as the Equal Pay Act 1970, the problem has not disappeared.
492
493Sexual orientation
494Discrimination occurs if a male teacher’s contract is not renewed because he ‘comes out’ to his fellow teachers.
495
4965 Enforcing human rights in the UK
497Enforcement of the ECHR through the ECtHR was introduced earlier in this unit. Though the HRA 1998 did not change the ability of individuals to make claims against the UK in Strasbourg, it did open up the opportunity for individuals to use UK domestic courts to challenge the government and its protection of ECHR rights. It was hoped that enabling access would allow individuals to save time and money as the road to Strasbourg was typically very long and expensive. It was further argued that adjudication by UK courts would provide a more ‘British’ view of rights and how UK society understood rights.
498
4995.1 Human rights and the judiciary
500At the domestic level, obligations given effect by the HRA 1998 as well as rights protected by other sources of domestic law can be enforced through the judicial organs of the UK. Often human rights cases will take the shape of a challenge to a newly enacted law that violates a human right in its application. Claims for human rights violations are directed against the state, its organs or any organisation that exercises a public function.
501
502A major sticking point between those ‘for’ and ‘against’ a human rights Act was the role that the judiciary would play in delivering the UK concept of rights. Arguments that ‘judicial activism’ would undermine the sovereignty of Parliament were countered by balancing the law-making and law-interpreting institutions (Bingham, 2010; Harvey, 2004).
503
504Even with the great balancing effort that took place during debate on the Act, a common argument remains that the HRA 1998 gives the judiciary too much power. Therefore, it is necessary to examine precisely the role the judiciary plays in relationship to Parliament in enforcing the HRA 1998. The judiciary is at the centre of human rights protection.
505
506Described image
507View larger image
508Figure 6 Layers of human rights protection in the UK
509Long description
5105.2 Key sections of the HRA 1998
511In addition to the specific rights incorporated by the HRA 1998, there are several sections worth reviewing in order to better understand how the UK courts interpret ECHR rights in relationship to Parliament.
512
513Section 3 HRA 1998 – Interpretation of legislation
514This section preserves the basic principle of parliamentary sovereignty, which you studied in Unit 4. It means that the courts will take as broad a view of statutory language as possible in order to maintain the compliance of the statute with the ECHR.
515
5163 Interpretation of legislation
517So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
518This section –
519a.applies to primary legislation and subordinate legislation whenever enacted;
520b.does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and
521c.does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.
522Section 4 HRA 1998 – Declaration of incompatibility
523If a court is unable to read a statute in an ECHR compliant way, s4 HRA 1998 says that the court may declare the statute incompatible. This will not force Parliament to change the law as it may have had a good reason for placing limits on particular rights. However, in the few cases that s4 HRA 1998 has been used (19 times as of 2011 – Ministry of Justice, 2011, p. 29), Parliament has almost always taken action to correct the law concerned.
524
5254 Declaration of incompatibility
526Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
527If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.
528Subsection (4) applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with a Convention right.
529If the court is satisfied
530a.that the provision is incompatible with a Convention right; and
531b.that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility,
532it may make a declaration of that incompatibility.
533
534In this section ‘court’ means –
535a.the Supreme Court;
536b.the Judicial Committee of the Privy Council;
537c.the Court Martial Appeal Court;
538d.in Scotland, the High Court of Justiciary sitting otherwise than as a trial court or the Court of Session;
539e.in England and Wales or Northern Ireland, the High Court or the Court of Appeal;
540f.the Court of Protection, in any matter being dealt with by the President of the Family Division, the Vice-Chancellor or a puisne judge of the High Court.
541A declaration under this section (‘a declaration of incompatibility’) –
542a.does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and
543b.is not binding on the parties to the proceedings in which it is made.
544As discussed earlier in this unit, human rights protection in the UK is informed by international and supranational treaties in addition to UK-specific law. The HRA 1998 acknowledges that UK courts should use as broad as possible an interpretation of rights in order to find UK legislation compatible with ECHR rights. This may include looking to human rights interpretations by international or European bodies.
545
546Activity 9 Considering legal sources of rights
547You should allow 10 minutes to complete this activity.
548One of the instances in which a UK court has issued a declaration of incompatibility is A and others v Secretary of State for the Home Department [2005] UKHL 71.
549
550Using the library legal research databases (e.g. JustCite – see Finding a case using JustCite if you would like a reminder of how to do this), locate A and others v Secretary of State for the Home Department [2005] UKHL 71. Read paragraphs 10, 23–25, and 27–28. Take note of what sources of law the House of Lords considered in making its decision. How do these sources relate to one another?
551
552Interactive feature not available in single page view (see it in standard view).
553Comment
554The case concerned the ability of the Special Immigration Appeals Commission (SIAC), which hears deportation appeals for those alleged to be a threat to national security, to rely on evidence obtained under torture. Noting that allowing such evidence might put the UK in conflict with international law, Lord Bingham clearly stated that both the principles of common law and UK obligations under the ECHR and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984 ‘compel the exclusion of third party torture evidence’ (para 52). Therefore, the court considered UK common law, ECHR rights as incorporated through the HRA 1998 (statute law) and international law in reaching its decision. Each of these sources views the admission of evidence obtained by torture as illegal. The Anti-terrorism, Crime and Security Act 2001 (Part IV) was declared incompatible with the ECHR and therefore incompatible with the HRA 1998. Lord Bingham’s approach reflected the multiple levels at which human rights obligations are duties of the state. In response to the decision, Parliament repealed the Anti-terrorism, Crime and Security Act 2001 (Part IV) and then adopted the Prevention of Terrorism Act 2005. One of the appellants in the case was Abu Qatada, who eventually challenged his deportation on other grounds at the ECtHR (as outlined previously in this unit).
555
5565.3 The expanding nature of rights in the UK
557In Section 2 the legal bases of the international prohibition against torture were examined. The absolute ban on torture is incorporated into UK law through schedule 1 HRA 1998 which includes Article 3 ECHR – ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’. The Othman (Abu Qatada) case was introduced earlier to survey how the strict prohibition against torture can be interpreted to extend beyond the simple obligation not to torture. It is through judicial interpretation that the nature of rights expands to reflect developments in human rights law and the values of society. Now this concept of interpretation will be examined through the right to privacy (Article 8 ECHR).
558
559The right to privacy encompasses a wide and ever-expanding concept of rights. Article 8 ECHR provides:
560
561Right to respect for private and family life
562Everyone has the right to respect for his private and family life, his home and his correspondence.
563There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
564The terms ‘private’ and ‘family’ have broad implications and, as case law has demonstrated, are subject to a wide range of questions regarding what constitutes ‘private’ or ‘family’. In considering the right to privacy the first thing a court must do is determine whether there has been interference with an individual’s private life, family life, home or correspondence. The right to privacy is a qualified right and may be limited by the state as long as the limitation is justified under law and the limitation is in the interest of legitimate objectives as outlined in Article 8(2) ECHR. The limitation must also be necessary to the function of a democratic society. Understandably, in order to not infringe other peoples’ rights there must be some limitations to rights. For example, though the right to privacy is very broad, it is limited in those instances that a person is harmed by the private activities of another person. Laws against child abuse are an example of how the right to privacy and family life is limited in order to protect children.
565
566In the last two decades, the right to privacy has developed significantly with respect to the rights of the lesbian, gay, bisexual and transgender (LGBT) community. For many years transsexual individuals suffered unequal treatment in law and the application of ‘family’ life excluded same-sex couples. Gender was historically considered a fact determined at birth, regardless of subsequent physical or anatomical transformation resulting from hormone therapy or surgery. Over time changes in social attitudes to the LGBT community led to changes in the law. Furthermore, across Europe and in the UK the definition of ‘family’ used to be understood as a relationship between a man and a woman. For example, the UK Matrimonial Causes Act 1973 defined marriage as being between a man and a woman. This was ultimately changed with the Marriage (Same Sex Couples) Act 2013 which states that the ‘Marriage of same sex couples is lawful’ (s1(1)). The expanding interpretation of the right to privacy in the UK sometimes tracked developments at the European level and other times pushed forward many of these changes, which will be outlined next.
567
5685.3.1 Rights of transgender/transsexual people
569The UK’s approach to issues related to transgender people can be traced in both judicial decisions and Acts of Parliament. In 1970, transgender individuals were denied any recognition of their change of sex in Corbett v Corbett (otherwise Ashley) [1971] P 83. The case involved a declaration of nullity for a marriage based on the fact that the wife was registered as a male at birth. The Matrimonial Causes Act 1973 explicitly defined marriage as a union between a man and a woman. The judge in the case was unwilling to recognise the change in sex of a transsexual individual following gender reassignment surgery.
570
571This view persisted for several decades. In 2003, the House of Lords addressed the issue of the right to identity of a transsexual individual once again in Bellinger v Bellinger [2003] UKHL 21, [2003] 2 AC 467. The wife was born and registered a male at birth but subsequently underwent gender reassignment surgery. Her husband supported her application to have their marriage declared valid from its inception. The House of Lords accepted that the Matrimonial Causes Act 1973 was incompatible with ECHR rights and declared the Act incompatible with the HRA 1998, thus overturning the long-standing Corbett decision. The ECtHR had recognised the right of transgender individuals to have their reassigned gender recognised at law the previous year in Goodwin v UK [2002] ECHR 588. The Gender Recognition Act 2004 was subsequently passed to rectify such situations and allows transsexual people to obtain a gender recognition certificate (GRC) which amends the original birth certificate.
572
573Figures 7 and 8 below provide information on the number of GRCs issued in the UK over a twelve month period.
574
575Described image
576Figure 7 Cumulative GRCs issued over a twelve month period
577Long description
578Described image
579Figure 8 Pending GRC applications
580Long description
5815.3.2 Rights of same-sex couples
582Another issue highlighting discrimination against the LGBT community stemmed from the unequal treatment of same-sex partners compared to heterosexual partners across a wide variety of laws. Statutes relating to inheritance, adoption and property are just a few of the instances in which same-sex partnerships were treated differently.
583
584A 2004 challenge to the Rent Act 1977 in Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557, represented a major change for same-sex couples in the UK. The House of Lords ruled that ‘an ordinary reading… [of the Act]… draws a distinction between the position of a heterosexual couple living together in a house as husband and wife and a homosexual couple living together in a house’, but that it was possible to use the interpretive power of s3 HRA 1998 to give effect to the provision in an ECHR compliant way (Ghaidan, p. 565). In this instance the House of Lords took a broad reading of the provisions of the Rent Act 1977 in order to ensure compatibility. This decision reflected progress on the issue of same-sex partners in many areas of law. At the time that the Ghaidan case was heard the Civil Partnership Act 2004 was being debated before Parliament: failing to expand the protection of the Rent Act 1977, therefore, would have indicated that the House of Lords was entirely out of step with the government.
585
586Progress in the UK on the legal rights of same-sex couples reflected the steady change that was taking place across Europe and particularly in Strasbourg. In the 2003 decision in Karner the ECtHR faced a similar set of circumstances that were presented in Ghaidan. Without specifically referring to private or family life, the ECtHR found that the different treatment of same-sex partners from heterosexual partners fell outside the narrow margin of appreciation that is mandatory when treating individuals differently. Prior to the Karner case the ECtHR was reluctant to dictate the expansion of equality of rights based on sexual orientation. Thus Karner represented a major change in ECtHR jurisprudence by outlining that to treat people differently based on sexual orientation would require ‘convincing and weighty reasons justifying the narrow interpretation’ of the relevant law (Karner, para. 42). Across Europe many states had already passed laws to give same-sex partnerships an identical treatment to heterosexual partnership across the law; thus, this case demonstrates the ECtHR tendency to keep a close eye on the ECHR members.
587
588One issue that is subject to different treatment across Europe is the institution of marriage. The ECtHR has been unwilling to find a state’s failure to provide same-sex couples the right to define their relationships as marriage in law a violation of the ECHR, particularly where other accommodations exist, such as the opportunity to register the relationship as a ‘civil partnership’ (Schalk and Kopf v Austria [2010] ECHR 995). Debates in the UK surrounding the issue reflect those that continue across Europe. However, the UK took the progressive step of adopting the Marriage (Same Sex Couples) Act 2013 in order to provide full equality to same-sex couples on the issue of marriage.
589
590The limited examples above demonstrate the evolution of the right to private and family life that has occurred in the UK. The right also considers issues related to whether private activity and protection of that activity can take place in public; when communications can be accessed by the government; when external, environmental influences can deprive an individual of the private enjoyment of their home – just to name a few. When considering the right to privacy and all of the other rights protected under the HRA 1998 it is important to keep in mind that the scope of rights are always changing as part of the ‘living’ project of human rights.
591
592Activity 10 The Republic of Conscience
593You should allow 5 minutes to complete this activity.
594Read the excerpt from ‘The Republic of Conscience’, a poem by Seamus Heaney, available on the Amnesty International website.
595
596Thinking about what you have learnt in this unit, does the poem reflect your view of what human rights law is intended to achieve? There is no need to write anything down. This is meant simply for reflection upon the information you have covered in this unit.
597
598Summary
599Human rights developed steadily over many decades, beginning with the very earliest centres of civilisation. Following the Second World War, an abundance of energy was focused on human rights as a movement and in law. The outcome of this focused energy is demonstrated by the numerous treaties that have been agreed at the international level and the shape that law has taken on the domestic level. These different sources of law provide the legal foundation of human rights.
600
601While many aspects of human rights are contested, there are generally recognisable concepts of rights and distinguishable types of rights. At the core, all human rights are about ensuring the dignity of every individual. The relationship between the HRA 1998 and the ECHR demonstrates how two legal systems influence one another as rights are continuously defined and redefined. The ECHR must cater to 47 states and try to normalise human rights for the collective of states. The HRA 1998 aims to focus human rights on life in the UK in line with its very diverse society. Understanding how rights are enforced at the European and UK levels gives a broader picture about rights protection in the UK. While every individual may not agree with way in which rights are extended, this is the trade-off of rights. One may not pick and choose who is protected by human rights. They are shared by all individuals, no matter who they are or where they live. Through the law of human rights, every individual should have the opportunity to live life in the way he or she desires, as long as the rights of others are not infringed.