Human rights legislation

Magna Carta symbolises resistance to tyranny and arbitrary rule. US President Franklin D Roosevelt (1882-1945) cited it in his inauguration speech on the spirit of democracy in 1941.^[1] Magna Carta, as a pre-cursor to universal human rights, has been an inspiration for those struggling for justice and freedoms across the world. When on trial for his life in South Africa in 1964, Nelson Mandela (1918-2013) invoked Magna Carta and the Universal Declaration of Human Rights (UDHR) in his statement from the dock.^[2] In his struggle for human rights, Martin Luther King (1929-1968) cited the Magna Carta principle 'justice too long delayed is justice denied'.^[3] Building on the legal legacy of Magna Carta, historic and contemporary struggles now are able to use the language of human rights. There is not a single ideology of human rights, but human rights are important in many political, philosophical and religious traditions.

The Universal Declaration of Human Rights

The modern conception of human rights dates from the 1940s. The appalling abuses of human dignity and the disrespect for human life epitomised by the Holocaust were so shocking to popular opinion that governments formed a new organisation, the United Nations (UN), with a commitment to justice and peace in the world. The Charter of the UN was signed in 1945 and it proclaims respect for human rights as the means to achieving world peace. An international Human Rights Commission was established to draft the Universal Declaration of Human Rights (UDHR), which was proclaimed by the General Assembly of the UN on 10 December 1948.^[4]

The main innovation of the UDHR is that it recognises, for the first time, a universal entitlement to rights applying to all ‘members of the human family’. Previously, because of a concern for national sovereignty, states were immune from external control or moral pressure when they enacted discriminatory legislation or allowed their agents freedom to undertake extra-judicial killings or torture.

The UDHR has little legal power but it has huge moral force because there is agreement across national, religious and cultural boundaries that it sets out the principles and minimum standards to be respected by individuals and governments. This common language for describing entitlements and discrimination has been adopted across the world.

The preamble to the UDHR sets out the aims of the Declaration, namely to contribute to ‘freedom, justice and peace in the world’. This is to be achieved by the universal recognition of, and respect for, human rights. Human rights are then precisely defined in 30 articles. These can be summarised as:

• personal rights (life, freedom, security, justice) in articles 2 to 11;

• rights regulating relationship between people (freedom of movement, rights to found a family, asylum, nationality, property) in articles 12 to 17;

• public freedoms and political rights (thought, religion, conscience, opinion, assembly, participation, democracy) in articles 18 to 21;

• economic, social and cultural rights (social security, work, equal wages, trade unions, rest and leisure, adequate standard of living, education, cultural life) in articles 22 to 27.

The European Convention on Human Rights and Fundamental Freedoms

The European Convention on Human Rights and Fundamental Freedoms (ECHR)^[5] was opened for signature in 1950. Ratifying the Convention obliges member states to observe certain of the human rights in the Universal Declaration, notably those essential for the preservation and working of a participatory democracy. Individuals who claim that their rights have been denied can take their case to the European Court of Human Rights whose decisions are binding on governments. Since the Human Rights Act 1998, the ECHR must be taken into account in UK law. Since the UK has no written constitution, the ECHR effectively acts as a constitutional instrument.

In summary the rights in the ECHR are:

Personal rights

• the right to life, liberty and security of person, including the enjoyment of family life and possessions and privacy in the home and in correspondence

• the right to a fair trial

• the right to education

Fundamental freedoms

• freedom of thought, conscience and religion

• freedom of expression (including for the press)

• freedom of peaceful assembly and association, the right to form trade unions

Prohibition of:

• torture and inhuman or degrading treatment, including slavery and forced labour

• retro-active criminal legislation

• the death penalty

• expulsion or refusal of entry to nationals

• collective expulsion of aliens

Human rights cases

Because of the powerful legal guarantees provided in the ECHR, the rights are carefully drafted and include a number of exceptions. So, for instance, the right to life does not extend to the accidental shooting of a suspect by a police officer attempting a lawful arrest.

In the UK, possibly the most far reaching result of a case determined by the European Court of Human Rights is the abolition of corporal punishment in schools. In 1982 the Court ruled that parents’ right to an education for their children in line with their consciences included refusing to allow the infliction of physical punishment. The Government chose to abolish such punishments from 1987.^[6]

The right to peaceful protest was reinforced when the Court of Appeal ruled in Wood v Commissioner for Police of the Metropolis [2009] EWCA Civ 414, that the Metropolitan Police had acted unlawfully in retaining photographs taken of an anti-arms trade campaigner as he was leaving the Annual General Meeting of arms fair-sponsor Reed Elsevier plc. Since the protestor was not charged with any offence, there was no ostensible reason to use stop and search under anti-terrorism legislation. Keeping the photographs on file was deemed to be a breach of the right to privacy under Article 8 of the European Convention.^[7]

In a similar case invoking the Human Rights Act, a campaigner who had been photographed at a demonstration, but not charged, was able to oblige the police to destroy the photographs that breached the right to privacy.^[8]

The United Nations Convention on the Rights of the Child

Human rights protect human vulnerability. Since children are particularly vulnerable, a new instrument, the United Nations Convention on the Rights of the Child (CRC) was opened for signature in 1989 and has been ratified by virtually every member state of the UN.^[9] The universal acceptance of this binding commitment to respect children’s rights is another strong indicator that human rights are not ideological and associated merely with the West or the North, but that they provide a universal standard.

Controversies around human rights

The European Convention has been challenged in the United Kingdom by political movements and their supporters in the media opposed in principle to European institutions. However, by definition human rights are not national but universal. Human rights include human rights education, since rights cannot be claimed if they are not known. While legal human rights are important, and may be invoked as a last resort, a culture in which human rights are valued and respected is a more powerful form of protection.

Footnotes

[1] Franklin D Roosevelt 3rd Inauguration speech. Washington DC 20 January 1941. [accessed: 03/03/15]
'The democratic aspiration is no mere recent phase in human history. It is human history. It permeated the ancient life of early peoples. It blazed anew in the middle ages. It was written in Magna Carta. In the Americas its impact has been irresistible.'

[2] Mandela’s statement at the Rivonia Trial. [accessed: 03/03/15]

[3] Martin Luther King’s Letter from Birmingham jail from 1963 [accessed: 03/03/15]

[4] Official UN Universal Declaration of Human Rights Home Page [accessed: 03/03/15]

[5] Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocols No. 11 and No. 14 [accessed: 03/03/15]

[6] Global Initiative to End All Corporal Punishment of Children: Campbell and Cosans v UK [accessed: 03/03/15]

[7] Court of Appeal ruling in Wood v Commissioner for Police of the Metropolis [2009] EWCA Civ 414 [accessed: 03/03/15]

[8] Gillan and Quinton v The United Kingdom, 12 January 2010 [accessed: 03/03/15]

[9] Unicef: Convention on the Rights of the Child [accessed: 03/03/15]

Further reading

Jack Donnelly, Universal Human Rights in Theory and Practice (2nd edition) (Ithaca and London: Cornell University Press, 2003)

Michael Freeman, Human Rights: an interdisciplinary approach (Cambridge: Polity, 2002)

Amy Gutmann, Identity in Democracy (Woodstock, UK: Princeton University Press, 2003)

Stephen Hopgood, The Endtimes of Human Rights (Ithaca and London: Cornell University Press, 2013)

Lynn Hunt, Inventing Human Rights: a history (London and New York: Norton, 2007)

Francesca Klug, Values for a Godless Age: the story of the UK's new Bill of Rights (Harmondsworth: Penguin, 2000)

Kate Nash, The Cultural Politics of Human Rights: comparing the US and the UK (Cambridge: Cambridge University Press, 2009)

Audrey Osler and Hugh Starkey, Teachers and Human Rights Education (Stoke-on-Trent: Trentham, 2010)