|European Convention on Human Rights|
Rights in general - a basic note:
There appears to be no universally agreed definition of the terms "right" (or "rights") but the concept of rights is important and there is an abundance of literature in which numerous legal thinkers have sought to analyse and explain rights.
At a basic level. a right appears
to be an entitlement to "something" and that "something" can take various forms. If the entitlement is recognised and enforceable by the law then we can say that there is a "legal right." The "something" is the core subject-matter of the right - for example, a right to express viewpoints and opinions (freedom of speech), a right to associate with other individuals (freedom of assembly), a right to receive a trial before an impartial tribunal (fair trial) and so on.
It is generally thought that a democratic State requires recognition by the law of a basic level of rights. The existence of such rights enables individuals to live in freedom and to participate in democratic processes. This was described by the USA Declaration of Independence (1776) - as "life, liberty and the pursuit of happiness."
The common law, as developed over the centuries by the judges, came to recognise particular rights. Professor A V Dicey in his "Introduction to the Study of the Law of the Constitution" (1885) wrote that the general principles of the constitution (as, for example, the right to personal liberty, or the right of public meeting) are, with us, the result of judicial decisions determining the rights of private persons in particular cases brought. Nevertheless, the common law did not offer a set of domestic human rights offering adequate protection to fundamental rights and freedoms. Even though the common law is capable of further development it is not, and is not likely to be, an adequate substitute for the protection of rights offered by the Human Rights Act 1998.
The legislative supremacy of Parliament also presents a potential problem for the protection of rights in the UK. Parliament can legislate to create new rights, remove existing rights, and modify rights.
Council of Europe:
The Council of Europe (COE) was created in the aftermath of World War 2. A common confusion is that COE is the same thing as the European Union (EU). That is not so. The COE has 47 member States and was created in 1949. The EU has 28 members (including UK) and developed following the Treaties of Rome 1951 which created three "communities" known as the European Economic Community, the European Coal and Steel Community, and Euratom.
The COE has achieved a great deal but its most remarkable achievement is perhaps the European Convention for the Protection of Human Rights and Fundamental Freedoms (pdf) - usually abbreviated to European Convention on Human Rights - (the ECHR).
The excellent website RIGHTSINFO explains that "Human rights are the values that keep society fair, just and equal. They’re the basic freedoms and protections everybody has by virtue of being human. They’re a set of universal values, like dignity, pluralism, tolerance and respect for each other. Their recognition is the foundation of freedom, justice and peace in the world."
The hideous experience of World War 2 amply demonstrated man's inhumanity to man and the need to at least try to prevent a recurrence. The preamble to the ECHR reaffirms "... a profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the Human Rights upon which they depend ..."
The ECHR sets out the rights which must be secured by signatory States to everyone within their jurisdiction - (Article 1). Everyone is a key word. States cannot pick and choose those who are "deserving" of the rights. The rights are:
- Right to life - Article 2 - the most fundamental right of all - our individual right to exist
- Prohibition of torture or inhuman or degrading treatment or punishment - Article 3
- Prohibition of slavery and forced labour - Article 4
- Right to liberty and security - Article 5
- Right to a fair trial - Article 6
- No punishment without law - Article 7
- Right to respect for private and family life - Article 8
- Freedom of thought, conscience and religion - Article 9
- Freedom of expression - Article 10
- Freedom of assembly and association - Article 11
- Right to marry - Article 12
- Right to an effective remedy - Article 13
- Prohibition on discrimination on any ground regarding the rights in the ECHR - Article 14
"There 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 well-being 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."
The astute reader will realise that there are inevitable difficulties of interpretation regarding the various rights. What, for example, is "inhuman or degrading treatment or punishment" for the purposes of Article 3. The need for authoritative interpretation led to the creation of the European Court of Human Rights (E Ct HR). The signatory States - (referred to as the High Contracting Parties) - undertake to abide by the final judgment of the Court in any case to which they are parties - ECHR Article 46.
The ECHR came into force for the United Kingdom in 1953 and a considerable number of cases were taken to the E Ct HR from the UK. The Human Rights Act 1998 (HRA98) was enacted to require public authorities in the UK (including courts) to recognise and act upon convention rights - to "Bring Rights Home" as the government' slogan at the time proclaimed. Recourse to the E Ct HR continues to be possible - e.g. if all domestic remedies have been exhausted.
A key feature of the HRA98 is that it provides for the higher courts in the UK to make "declarations of incompatibility" regarding statutory provisions judged by the court to be contrary to convention rights. The declaration does NOT "strike down" the Act and it remains in force but the HRA98 also provides a "fast-track" process by which Ministers can bring forward amending legislation to deal with the incompatibility. Ministers do not have to do this but they must then face up to any consequences of not doing so.
Concerns for human rights in the UK?
There is cause for concern about the future of human rights protection in the UK - Rights Info 13 February 2019 and British Institute for Human Rights 25 January 2019 - "threats to the Human Rights Act (HRA) have resurfaced. Last week, the government, in response to a letter from the House of Lords EU Justice Sub-Committee on the status of citizens’ rights after Brexit, failed to give assurances that it will not repeal or replace the Human Rights Act once the process of Brexit has concluded."
Which of the rights are YOU prepared to give up?
Those are, I think, the very basic nuts and bolts. A detailed analysis may be found in texts such as Human Rights Law and Practice by Lester, Pannick and Herberg or Law of the European Convention on Human Rights (Harris, O'Boyle and Warbrick), or Human Rights Law (Merris Amos) and many other texts.
I end this post with a short extract from the late Lord Bingham's book "The Rule of Law" (Allen Lane, 2010) at page 84:
"Over the past decade or so, the Human Rights Act and the Convention to which it gave effect in the UK have been attacked in some quarters, and of course there are court decisions, here and in the European Court, with which one may reasonably disagree. But most of the supposed weaknesses of the Convention scheme are attributable to misunderstanding of it, and critics must ultimately answer two questions. Which of the rights ... would you discard? Would you rather live in a country in which these rights were not protected by law?"
A little later, Lord Bingham noted - "There are probably rights which could valuably be added to the Convention, but none which could safely be discarded."
Rights and Freedoms guaranteed by common law - David Burrows, LexisNexis 26 November 2014
Common Law: a poor substitute for the protections afforded by the Human Rights Act - Hodge Jones and Allen, 30 October 2015
If the Human Rights Act were repealed could the common law fill the void? Oxford Human Rights Hub, 27 November 2013
Rights - Stanford Encyclopedia of Philosophy, 19 December 2005 and revised 9 September 2015