Unlocking Human Rights

Peter Halstead

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781317814634
• Edition: 2
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Unlocking Human Rights will ensure that you grasp the main concepts of this fascinating and dynamic area of law with ease, providing you with an indispensible foundation in the subject. The book explains in detailed, yet straightforward, terms:

• The nature of human rights
• European Convention on Human Rights
• Human Rights Act
• Right to life
• Torture, inhuman or degrading treatment or punishment
• Public order, police powers, freedom of association and assembly
• Right to a fair trial
• Freedom of expression
• Privacy, private life and marriage
• Right to liberty and security
• Prohibition of discrimination
• Terrorism
• Freedom of thought, conscience and religion
• Property rights
• Contemporary themes of UN human rights review of the UK, constitutional reform, and security

The book provides practical knowledge to help you apply the understanding of these themes and explains:

• Rights concepts and language
• How the Convention and Human Rights Act operate
• Ways in which applicants use the procedures to remedy injustices when domestic UK law has let them down
• What kinds of protection are available to everyone within the UK's jurisdiction
• How a balance is struck between the need to protect many different kinds of right in the modern world, with the equally important need to protect everyone from external threats
• Why it is vital that essential freedoms of thought, conscience, religion, association, assembly and expression are protected
• How the 'rights' which everyone claims as their own have to be balanced against the qualifications or restrictions that are imposed to protect other people's interests

This new volume is fully up-to-date with the latest changes in the law and includes discussion of essential developments, including the Protection of Freedom Act 2012, Marriage (Same Sex Couples) Act 2013 and the Succession to the Crown Act 2013.

1

Introductory concepts

AIMS AND OBJECTIVES

At the end of this chapter you should be able to:

Appreciate the wide nature of modern human rights and understand how they developed and fit in with the United Kingdom’s uncodified constitution

Understand the ways in which an international multi-lateral convention is applied in English domestic law

Appreciate and use the referencing and citation methods appropriate to the European Convention, Commission and Court of Human Rights

1.1 Overview

Principle 1 of the United Nations Stockholm Declaration 1972 states:

QUOTATION

‘Man has the fundamental right to freedom, equality and adequate conditions of life in an environment of a quality that permits a life of dignity and well-being and he bears a solemn responsibility to protect and improve the environment for present and future generations.’

This declared principle encapsulates the essence of human rights. The word ‘freedom’ as used here represents the ‘first generation’ of individual civil and political rights arising from western philosophical and political theory, set out in the United Nations Universal Declaration of Human Rights in 1948, and encapsulated in the European Convention on Human Rights in 1950.

‘Equality’ suggests a post Second World War social or ‘second world’ view as it would have been described during the Cold War (1945–89) suggesting that the collective rights of peoples should be accorded prominence rather than private and individualistic rights. An underlying implication may be that claims to individual rights are a luxury that many people in the world cannot afford.

Individual civil and political rights are taken to mean the enjoyment of such things as personal freedom of thought, conscience and religion, to associate with others, to fair judicial hearings and the ability to follow whatever way of life one chooses free from undue interference by the State, and similar privileges. On the other hand, economic, social and cultural rights (rather than freedoms) tend to refer to the collective need for everyone to have access to adequate provision for health, education, housing, job security and pensions. Of course this does not imply that they are entirely different and mutually exclusive, as in a welfare state such as the United Kingdom a combination of both is enjoyed, albeit under strain because of economic difficulties.

In order to achieve the types of objective in either category, however, it is argued that a third generation of more amorphous collective minority and developmental rights should also be recognised. Perhaps the most important of these must be a healthy and supportive environment in which mankind can live and thrive, the ‘adequate conditions of life’ referred to in the Stockholm Declaration.

Underlying and underpinning all aspects of the concept of universal human rights is the absolute requirement that everyone, however rich or poor, whoever they may be and wherever they may live, is entitled to respect from others and should be allowed and enabled to live an adequately resourced and supported life in dignity. The world should be used, protected and improved by its inhabitants and enhanced for their children and grandchildren, the present and future generations of which the declaration speaks, emphasising that mankind possesses a life interest in, rather than full ownership of, the world – that we are tenants of the planet, not freeholders.

It should be noted that not everyone accepts the universality of rights, and the philosophical approach representing this alternative view is referred to as cultural relativism. There is thus a distinct divide in approaches to and understanding of human rights between universalism and cultural relativism.

1.1.1 Hard and soft law

The fact that this is a ‘Declaration’ also indicates another important aspect of human rights: namely, that many of them exist as aspiratory ‘soft law’. Globally, only a small proportion of human rights are enshrined in and protected by ‘hard’ or enforceable law, and where this is the case they are restricted to particular defined rights in limited parts of the world, an example being the European Convention on Human Rights. The recognition and growth of human rights, like other human regimes, is always work in progress and is difficult to measure on any meaningful scale because there is no entirely satisfactory objective rights system that is humanly achievable. Circumstances constantly vary, and mankind is now caught up in global warming and climate change momentum that is intimately connected to rights claims.

It is a truism that States place more importance on economic self-interest than on working towards a fair system of global governance which respects and protects everyone. Promotion and promulgation of human rights should be protected like the economic and trade interests governed by the World Trade Organisation (WTO), but they are not. In addition to considering the general nature of rights, this first chapter highlights some rights issues that are vital for the world today, and examines them briefly.

1.2 Bases of rights and freedoms

The idea of natural rights arises from belief in natural law, that there were in nature gods or in later times and various religions one God who created the universe, from whom everything springs and who makes everything possible. From early primitive chthonic notions mankind developed a variety of more sophisticated religious sentiments and beliefs, a common characteristic of which is that they usually prescribe ways in which people should behave towards others, but without the flexibility of positive law (human imposed law) that can be changed as circumstances require; so both primitive natural law and religious beliefs and more sophisticated positive laws throughout the ages have fed and continue to feed into the development of human rights.

1.2.1 Rule of law

Fundamentally, modern rights and freedoms need to be based on the rule of law if they are to be effective and enforceable, although this is a problematical and ambiguous concept that requires explanation. Most modern States lay claim to running their affairs in accordance with their interpretation of the rule of law, but if the European Union, China and the United States all sincerely believe that they adhere to the rule of law, it quickly becomes obvious that their respective visions differ considerably, one from another.

The concept requires accountable government, answerable periodically to a widely based electorate, voting in a fair electoral system and with clear boundaries established by a balanced constitution. What it does not tell us is how for each of these elements the objective is to be achieved, or what other aspects are necessary or desirable to make the rule of law work.

According to the legal philosopher John Finnis:

QUOTATION

‘the name commonly given to the state of affairs in which a legal system is legally in good shape is “the Rule of Law”… [a] legal system exemplifies the Rule of law to the extent (it is a matter of degree in respect of each item on the list) that:

(i)	its rules are prospective, not retroactive, and
(ii)	are not in any other way impossible to comply with; that
(iii)	its rules are promulgated,
(iv)	clear, and
(v)	coherent one with another; that
(vi)	its rules are sufficiently stable to allow people to be guided by their knowledge of the content of the rules; that
(vii)	the making of decrees and orders applicable to relatively limited situations is guided by rules that are promulgated, clear, stable, and relatively general; and that
(viii)	those people who have authority to make, administer, and apply the rules in an official capacity:
	a are accountable for their compliance with rules applicable to their performance and
	b do actually administer the law consistently and in accordance with its tenor.’

1.2.2 Separation of powers

An important theory supportive of the rule of law is that power should be...