Recent proposals for the UK to leave the European Convention on Human Rights (ECHR) , and presumably to repeal the Human Rights Act 1998, demand a further analysis of the ECHR.
The creation of the ECHR can be seen in the context of appalling human rights violations during World War II and the development of Stalinism in Eastern Europe. It should be noted that Winston Churchill was deeply involved in the creation of the Convention. It came into force in 1953 and is enforced by the European Court of Human Rights. The UK was the first country to ratify the Convention in 1951.
Human Rights Act 1998
The Human Rights Act 1998 incorporated the provisions of the European Convention on Human Rights into UK law in the face of strong opposition. For example, Lord Denning voiced the view that we should not be bound by the decisions of judges who do not know our way of life, nor anything of our common law.
The main rights covered by the Act are as follows:
- Article 2: Right to life
- Article 3: Prohibition of ill treatment
- Article 4: Prohibition of slavery and forced labour
- Article 5: Right to liberty and security
- Article 6: Right to a fair trial
- Article 7: No punishment without law
- Article 8: Right to respect for private and family life
- Article 9: Freedom of thought, conscience and religion
- Article 10: Freedom of expression
- Article 11: Freedom of assembly and association
- Article 12: Right to marry
- Article 14: Prohibition of discrimination.
- Article 1, Protocol 1: Protection of property.
These principles have been developed by a large mass of case law in the European and UK courts. Human rights law has become a huge subject in its own right. Its scheme of a basic statutory framework, developed by case law to become a sprawling and incomprehensible mass, is indistinguishable in concept from, for example, tax law.
The clarity and simplicity of the European Convention on Human Rights is now submerged in a lawyer-created mesh of endless interpretation and sophisticated analysis.
Criticisms of the ECHR should not be taken as in any way supporting the semi-literate and populist abuse directed at human rights organisations by a number of journalists and politicians.
My general argument is that human rights in the UK need to be extended, rather than restricted.
British human rights organisations should, at the very least, engage in discussions as to the incorporation of social and economic rights into UK human rights law and should press for this expansion.
In 2010 the Liberty organisation issued a publicity poster asking “What not to love?”. The poster featured a heart-shaped statement of the rights protected by the Human Rights Act 1998. Economic and social rights were not mentioned.
Individual and collective human rights
You can’t eat and drink freedom of speech, and it doesn’t produce regular electricity and clean water
(Baghdad taxi driver, January 2010)
The rights protected by the Act of 1998 are generally recognised as civil and political rights, largely aimed at the protection of individuals. Social and economic rights are not covered. There is, for example, no right to work and no right to healthy and safe working conditions.
While the current trend towards the protection of human rights in relation to, for example, freedom of speech and the right to a fair trial, is without doubt desirable, progressive and moving towards human emancipation and social justice, these are essentially individual civil and political rights. They do not address social and economic issues.
It has been pointed out that before people get to political rights they want to know what to do about food and water.
In 1986 Tony Gifford made the following points:
- The most profound injustices in our society stem from political and economic, rather than legal causes.
- Legal rights can do little to enrich the lives of those who have no jobs.
- If no money is spent on building new homes, then the theoretical rights of homeless people and slum dwellers are not of great value.
- If the opportunity for a good education and good health is a perquisite for the wealthy, then the idea of equality before the law becomes a fraud.
Lord Bingham has pointed out that there is no universal consensus as to fundamental rights and freedoms. In some developing countries, a higher premium is put on economic growth than on the protection of human rights.
It has also been commented that if you look globally today and want to talk about human rights, for the vast majority of the world’s population they don’t mean very much. To talk about freedom of expression to a man who can’t read the newspaper, to talk about the right to work to someone who has no job: “human rights” means nothing to them unless it brings some change on these particular issues.
Economic, social and cultural rights have no less priority than political and civil rights. They should be acknowledged as full legal rights which must be taken as seriously as civil and political rights. People whose economic rights are infringed are the majority. More children die of lack of food or water than people who are killed by torture or the death penalty.
In Western countries economic and social rights are treated as welfare state or socialist programmes, not as fundamental human rights.
There are said to be very real doubts about whether socio-economic rights can qualify in principle as human rights. The argument goes that even if social and economic rights can be properly asserted on behalf of all human beings, they do not give rise to universal human rights. One reason for this is that the extent to which a society can provide economic goods for its members must depend upon the availability of resources within that society.
The Human Rights Act 1998 protects property rights but not social welfare. For those with a small stake in the property economy, this is simply irrelevant. English applications of the law of human rights have done nothing to narrow the gap between rich and poor. For example, child poverty has not reduced.
Although collective social and economic rights are not protected by English and European human rights law, there are a number of international instruments which do deal with rights other than individual civil and political rights. For example, the Universal Declaration of Human Rights 1948 states the following key points:
- The universal nature of human rights norms is beyond question.
- Human rights are universal, indivisible, interdependent and interrelated.
- Economic and social rights are real rights.
The Declaration states that everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment. Also, everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay and the right to an adequate standard of living including food, clothing, housing and medical care.
Whether these rights are enforceable through the United Kingdom courts is a question with no easy answer. The case law is unclear.
Part III of the International Covenant on Economic, Social and Cultural Rights 1977 (a multilateral treaty) recognises:
- The right to work
- To enjoy just and favourable conditions of work
- To rest and leisure
- To form and join trade unions
- To strike
- To social security
- To special protection for the family, mothers and children
- To an adequate standard of living including food, clothing and housing, physical and mental health
- To education and to scientific and cultural life.
Another example is the European Social Charter (1996 version), which includes the following:
- All workers have the right to safe and healthy working conditions.
- Children and young persons have the right to special protection against the physical and moral hazards to which they are exposed.
- Workers have the right to take part in the determination and improvement of the working conditions and the working environment.
Parties to the Charter undertake to formulate, implement and periodically review a coherent national policy on occupational safety, occupational health and the working environment. The aim of this policy shall be to improve occupational safety and health and to prevent accidents and injury to health arising from workplace conditions.
Specifically, the Charter provides the following:
- Right to work
- Right to work under fair and safe conditions
- Fair remuneration
- Right to collective organisation and bargaining
- Special protection for women, children and young persons
- Right to education and vocational training
- Rights to health care, social security, welfare services and care for the disabled
- Protection for the family, especially for mothers and children.
The Charter has no enforcement mechanism and does not confer enforceable rights on individuals. Proposals for reform of the enforcement system have not been ratified. The Charter was signed by the UK in1997 but has not been ratified.
The European Social Charter and other conventions dealing with economic and social rights do not have direct effect in English law. Their status in English law is unclear.
Extreme examples of individual human rights
The case of two English motorists, Francis and O’Halloran, who complained to the European Court of Human Rights in 2007 that their right to silence, and not to incriminate themselves, had been violated. Francis had been photographed by a speed camera driving at 47 mph in a 30 zone. O’Halloran was photographed doing 69 mph in a 40 zone on the M4. English law requires car owners to disclose the identity of drivers whose vehicles have been photographed exceeding speed limits.
O’Halloran admitted being the driver but later revoked this confession on the grounds of the right to silence and not to incriminate himself. Francis refused to state whether he had been the driver. Both were convicted and complained to the European Court of Human Rights.
That court rejected the complaints. It ruled that the protection against self-incrimination was not absolute. Drivers of motor vehicles accept responsibilities and obligations. In the United Kingdom, these obligations include informing the authorities about the identity of the driver.
Francis and O’Halloran were supported by Liberty. That organisation later accepted that its commitment of resources in this case had been a serious mistake.
The first health and safety related case involving an express application of human rights law was reported in August 2009.
In R v Nottinghamshire Healthcare NHS Trust (2009), the Court of Appeal gave judgment in a case involving smoking and human rights.
The facts, in summary, were that E, a patient at Rampton high security psychiatric hospital, complained that a smoking ban introduced at the hospital, as a consequence of the NHS Trust’s policy and the Smoke Free (Exemption and Vehicles) Regulations 2007, was a breach of his rights under Article 8 of the European Convention on Human Rights.
The 2007 Regulations prohibited smoking within enclosed spaces and permitted smoking to continue in outside spaces. The NHS Trust’s policy banned smoking both inside and out, subject to very limited exceptions. The basis for this ban was that security reasons prevented the Trust from allowing patients to smoke outside.
On behalf of the claimant, it was argued that Article 8 protected a person from interference by the state with that which he chose to do within the privacy of his own home. If that was right, then the claimant’s life, detained in Rampton, could be equated to life at home.
The claim was rejected by the High Court. The claimant appealed to the Court of Appeal.
That court dismissed the appeal and made the following points:
- The freedom protected by Article 8 was not the same as the freedom to do whatever a person chose to do.
- Rampton was the claimant’s home, but it was not the same as a private home and the distinction was significant. It was a public institution, operated as a hospital. For safety and security reasons, supervision was intense. It was a public and not a private place.
- Freedom from interference by the state was already significantly constricted within the confines of a secure hospital. There was no basis for distinguishing the loss of freedom in such an institution to choose what to eat or drink, and the ban on smoking.
- Although Article 8 did apply to closed institutions, it applied to a far more limited extent than it would to activities in a person’s home.
- Difficult as it was to judge the importance of smoking to the integrity of a person’s identity, it was not sufficiently close to qualify as an activity deserving the protection of Article 8.
- Article 8 did not protect a right to smoke at Rampton. The prohibition did not, in such an institution, have a sufficiently adverse effect on a patient’s physical or mental integrity.
- A policy of prohibiting smoking in the premises of an NHS Trust, which had the consequence of a ban on smoking for those detained in a high security psychiatric hospital, did not violate the patients’ human rights and was lawful.
The Health Act 2006 required, in summary, that all premises used by the public must be smoke-free by July 1, 2007. Rampton was a place of work and had to be smoke-free unless exempted by regulations. The 2007 Regulations permanently exempted prisons but only gave temporary exemption to mental health units.
Albie Sachs, a South African judge, considered whether the obligation on the state to promote socio-economic advance should be made a constitutional duty. He commented that where the struggle for survival is overwhelming, the freedom to vote and the right to criticise the government risk becoming devoid of practical meaning. Individual human rights can guarantee to people dying of hunger the inalienable right to use their last breath freely to curse the government.
Sachs tells how a group of black South African students set up an Anti-Bill of Rights Committee. They regarded the Bill of Rights as a document established by the privileged white community to block future moves towards social and economic transformation. Whites owned 87 per cent of South African land and 95 per cent of its productive capital. Property rights guaranteed by the Bill of Rights meant that the poor would remain poor and the rich would get richer.
During the drafting of the South African constitution, a question for discussion was whether social and economic rights, for example the right to health, housing, food and education, should be included as fundamental rights.
This discussion centred on whether “bread rights” should be on a par with “freedom rights”.
The 1996 Constitution of the Republic of South Africa sets out, in simple and transparent terms, a number of social and economic rights. It has been described as the most progressive Constitution in the world.
- Everyone has the right to have access to adequate housing.
- Everyone has the right to have access to health care.
- The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of these rights.
This has been considered by the South African Constitutional Court in a number of cases, including the following:
- Government of the RSA v Grootboom (2001). G and others were squatters on privately owned land. The owner applied to the local authority for their eviction. The Constitutional Court was asked to interpret the sections of the Constitution which guaranteed the right to access to adequate housing and gave children the right to shelter. The Court ruled that the state had an obligation to establish a coherent and coordinated housing programme. This obligation had to be concentrated on people in crisis. Those whose needs were most desperate had a right to emergency relief and shelter.
- Minister of Health v Treatment Action Campaign (2002). The South African Health Department refused to generally supply Nevirapine, a drug for treating HIV positive pregnant women. The Constitutional Court ruled that the Health Department was in breach of its obligation under the Constitution to provide access to health care in a reasonable manner and taking account of pressing social needs. The Department was ordered to supply the drug at all public hospitals and clinics.
Crucially important issues like these have not been discussed in the English courts or by the human rights industry.
The Human Rights Act is incomplete. It should be amended to include social and economic rights, following the South African model.