Human Rights is in the news a lot at the moment, sadly for all the wrong reasons, as it seems our Government here in the UK is determined to undermine them. There also seems to be some confusion, linking them to the UK's membership of the European Union (EU). Which is a totally separate organisation.
So what are human rights and where do they come from?
Human rights are based on three core principles.
They are universal. They apply equally to everyone, every human being on the planet regardless of sex, race, nationality, socio-economic group, political opinion, sexual orientation or any other status.
They are inalienable. They cannot be denied someone simply because we do not like the person exercising them. They can only limited in certain tightly controlled circumstance and some such as the prohibition on torture and slavery, can never be limited.
They are indivisible. They are interlinked and you cannot pick and choose the ones you wish to honour. For instance you cannot exercise your right to a fair trial in a society that discriminates against you and the right to free speech is meaningless without the right to free assembly.
They are not privileges that have to be earned, but are owed to you by the state in which you live. Public bodies have a duty to protect your rights and your Government a duty to ensure laws are in place to protect your human rights from others.
So where do these rights come from?
In Britain the idea that human beings possess a set of inherent and inalienable rights has deep roots which can be traced back over 800 centuries. As long ago as 1186 Henry II established the Assize of Clarendon paving the way for the abolition of trial by combat and trial by jury. In 1215 Magna Carta established the writ of habeas corpus, allowing people to appeal against imprisonment without trial. The 1689 English Bill of Rights put the notion of inalienable rights beyond doubt, including the freedom to petition the Monarch, the freedom from cruel and unusual punishments and the freedom from being fined without trial. In 1833 slavery was abolished and the 1918 Representation of the People Act gave women the right to vote.
In 1948 as a response to the atrocities of the Second World War the United Nations (UN) adopted the Universal Declaration of Human Rights, the de facto gold standard for human rights. The culmination of centuries of thinking along both secular and religious lines and the "foundation of freedom, justice and peace in the world."
Britain's most famous Conservative Prime Minster, Winston Churchill was instrumental in creating the Council of Europe, something he first suggested as early as 1943. The Council was established by the Treaty of London on 5 May 1949. It now covers 47 member states with 820 million citizens. All European states except Belarus, Kazakhstan, and Vatican City. The Council, which is entirely separate from the European Union (EU) exists to promote co-operation between European countries in the areas of legal standards, human rights, democratic development, the rule of law and cultural co-operation.
In 1950 lead by the British prosecutor at the Nuremberg Trials of Nazi war criminals, MP and lawyer Sir David Maxwell-Fyfe, the council drafted the European Convention on Human Rights (ECHR). The UK signed the convention in 1951, which entered into force on 3 September 1953. The Convention is viewed as a modern reworking of English Bill of Rights, the American Bill of Rights and the French Declaration of the Rights of Man incorporating key elements of Universal Declaration of Human Rights.
The 1998 Human Rights Act (HRA) is the legal embodiment of the ECHR, giving ‘further effect’ to rights and freedoms guaranteed under the European Convention. In practice this means that Judges must read and give effect to legislation (other laws) in a way which is compatible with the Convention rights; and it is unlawful for a public authority to act in a way which is incompatible with a Convention right. Unlike the US Bill of Rights or German Basic Law, which entrench rights, it does not allow courts to strike down incompatible legislation. Instead, the HRA preserves the long-held doctrine of parliamentary sovereignty – as Parliament alone can decide whether or not to repeal or amend legislation.
The European Court of Human Rights was established in 1959 and the United Kingdom has allowed an individual right of application to the Court since 1966. Before applying to the Court applicants are required to pursue any legal proceedings in this country that are capable of giving them redress for the violation of their Convention rights. Now that the HRA is in force, this will usually involve pursuing a claim under the Act. Around 1,500 claims are brought against the UK each year, and the UK loses around 10 annually.
However the current government plans to repeal the HRA and replace it with an as yet unspecified British Bill of Rights that would curtail the 1966 right to petition the European Court of Human Rights. The UK government has also make it clear that if an accommodation cannot be reached with the Council of Europe over its plans to veto rulings made by the European Court it could withdraw from the ECHR. Such a move could seriously undermine the ECHR and the Council of Europe, emboldening Vladimir Putin and others to violate the rights of their citizens, citing Britain's example as a justification.
Repealing the HRA would also provoke a constitutional crisis in the UK as the act is embedded in the devolution arrangements for Scotland and Wales. These require their respective parliaments to only pass laws that are compatible with human rights. While the Good Friday Agreement (that brought peace to Northern Ireland) guarantees that Britain will incorporate the European convention into Northern Ireland’s laws. The only feasible solution appears to be an English Bill of Rights that would result in some people in the UK having fewer human rights than others.
It has also been suggested in a draft bill previously produced by Martin Howe QC that the rights of any individual would depend on whether they were a British citizen (full fundamental rights), an EU national (fewer rights) or a foreigner (even fewer rights). This violates the fundamental principles on which human rights have been founded for centuries and the founding principle of both the UN Declaration of Human Rights and ECHR; that the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.
In fact it's hard to see why any Government would want to repeal the HRA. The legal embodiment of one of Europe's greatest post-war achievements, in which Winston Churchill and Britain's prosecutor at the Nuremberg Trials played a pivotal role, the ECHR. Having helped shaped and create the ECHR to protect the human rights of everyone in Europe it's inconceivable a British Government would now seek to remove those rights from its citizens. Unless of course it is planning to enact further legislation that would violate those human rights we all now take for granted.