Human rights law has played an important role in anchoring economic, social, and cultural rights. Everybody deserves human rights simply by virtue of being human. Age, race, gender, or ability should not impact this. But where did these rights originate from, and how inviolable are they truly?
Evolution of human rights
Three historical examples come to mind in showing how human rights have evolved.
Firstly, the Bible’s 10 commandments could be said to reflect the beginning of basic rights. For example, “thou shalt not steal” implies that everybody has a right to private property. While these commandments were not officially recognised as rights accessible to everyone, they should have been – the Bible’s reference to “imago dei” indicating that we should all have rights due to our inherent worth and dignity.
The second example of human rights development is the American Revolution, which focused on the importance of liberty. Americans fought for everyone to have basic rights (with the notable exception of women and slaves). In the Declaration of Independence, Jefferson wrote: “behold these truths to be self-evident that all men are created equal”. The British had denied the Americans liberty, taxation with consent, and treated them as subjects purely relevant for trade. In Thomas Paine’s Common Sense, he stated that ‘Reconciliation is now a fallacious dream’ and that the British held no regard for American life. His words encouraged Americans to sever ties with an oppressive government with no basis in scripture or natural law. This, coupled with blood loss in war, was a turning point, in which the Americans took an unforgettable stand against their oppressors. It reflects the importance of public opinion when it comes to human rights.
A third defining moment for the evolution of human rights was World War II and its atrocities, including the Holocaust. After the death of around 6 million Jews, the rest of the world could not stand idly by. A series of military tribunals took place in Nuremberg, Germany, to punish the leading Nazis for international crimes committed during the war. The Nuremberg trials were also key to the development of ‘crimes against humanity,’ which aim to ensure individuals are treated with minimum civility by their own government.
Modern examples of human rights in the UK
Protection against discrimination
Today, it is perhaps even clearer to see human rights are related to almost all aspects of our lives. For example, in the context of employment law, it is illegal to be terminated because of a protected characteristic [1] under the Equality Act 2010. Culturally and socially, human rights have given the rights of the minority groups an impact in practice. The recent #BLM movement focuses on the argument that black people deserve their rights to be upheld and, therefore, should not be subject to mistreatment or abuse due to their skin tone. The public recognised a bias – conscious and unconscious – in the ways ‘neutral’ laws are implemented. Facts including that the police arrest five times more black people than white people, and that 50% more African-Americans are wrongfully convicted, are testament to this.
The Belmarsh case and the right to liberty
In the UK, if Parliament refuses to respect human rights, and the judiciary is unable to willing to intervene, then claimants can have recourse to the European Court of Human Rights in Strasbourg. This was a live issue in the Belmarsh case, where the government attempted to deny the prisoners at Belmarsh of their right to liberty (Article 5, European Convention on Human Rights) in the aftermath of 9/11. Under the Anti-terrorism, Crime and Security Act 2001, if the Secretary of State (i) believed a person’s presence in the UK ‘is a risk to national security,’ (ii) ‘suspect[ed] the person is a terrorist, and (iii) that person was not a British citizen – then, they could be imprisoned indefinitely (without a criminal charge or trial). While the threat to liberty was clear, the government sought to rely on Article 15 ECHR – or what Mark Elliott terms the ‘get-out’ clause. This provided that “human rights can be suspended as long as there is a war or emergency, but only to the extent that the suspension of human rights is made strictly necessary by the nature and severity of that emergency.” Home Secretary Charles Clarke said that the Belmarsh detainees would stay in prison and that measures would “remain in force.”
It was clear that the UK legislation was directly discriminatory, applying different rules to foreign nations compared to those of UK citizenship. The House of Lords recognised that the conditions of the ‘get-out’ clause were not met. For example, there were other less drastic measures in the event of a threat, including surveillance. The detainment of foreign suspects was not necessary or justified by the 9/11 attacks. Therefore, the detainment of the Belmarsh prisoners infringed the right to liberty. The consequence was a declaration of incompatibility under section 4 of the Human Rights Act – a declaration by a UK judge that a statute is incompatible with the European Convention of Human Rights. Therefore, through the political pressure, Parliament replaced Anti-terrorism Act 2001 with the Prevention of Terrorism Act 2005 in fear of the European Court getting involved. Here, the influence of the court ensured that, eventually, human rights were upheld.
R (Nicklinson) v Ministry of Justice and the right to respect for private life
In 2005, Mr. Nicklinson suffered a severe stroke and became paralysed from the neck down. He wished to end his life but, owing to his paralysis, he could not commit suicide without assistance. As Mr. Nicklinson was unable to commit suicide unaided, he desired assistance. However, section 2 of the Suicide Act 1961 prevented him from doing so lawfully as it is an offence to do “an act capable of encouraging or assisting the suicide or attempted suicide of another person.” Mr. Nicklinson went to court and sought (i) a declaration for it to be lawful for a doctor to assist with suicide and (ii) a declaration that the ban on assisting suicide was unlawful owing to incompatibility with the right to respect for private life (Article 8, ECHR). Although Mr. Nicklinson died of pneumonia by declining all food after a loss at the High Court, the Supreme Court passed judgement in 2014. They concluded that legalising euthanasia of this kind would be contrary to Parliament’s intentions in enacting the relevant law. For example, one consideration in favour of criminalising assisted suicide is to protect the rights of the vulnerable against pressure to end their lives by self-interested relatives. Equally, such a move might be considered a slippery slope – voluntary euthanasia eventually leading to involuntary euthanasia.
While Lady Hale and Lord Kerr (the minority), believed that the law was incompatible with Article 8, I agree with the majority (above). The judiciary, being unelected, should abstain from taking a different view to that enshrined in the Suicide Act 1961 due to parliamentary sovereignty. As the other three members of the majority concluded, “it would be inappropriate to issue a declaration of incompatibility at the present time, but that the inappropriateness of doing so might be eroded if Parliament were to fail to reconsider the questions raised by the case.” While, arguably, this particular human right may not have been upheld, it may be true that limited exemptions to human rights should be made where other fundamental considerations – including respect for democracy – are at stake.
Human rights are necessary for society and they are influenced by several factors. Although they are not always upheld and may prove difficult to safeguard, they provide a foundation for everyone – leaving aside a person’s background and guaranteeing true equality. Our race, gender, social class, religion, and any other protected characteristics should not remove our human rights. Every human right is of equal importance to everyone simply because we are human. As the above examples illustrate, while human rights may play a part in influencing law, at the moment, their protection is not absolute – as should be the case. We will need to look to continued evolution in the hope that this comes to pass.
[1] Protected characteristics: age, disability, race, religion, belief, sex, sexual orientation, marriage and civil partnership, pregnancy
