Guest post: A Guide to Human Rights: Legislation & Making a Claim
By Barlow Robbins
Britons often learn about human rights when complex legal cases reach the highest courts in the land; for example, when a suspected terrorist fights an extradition order in the Supreme Court. The issue of human rights, therefore, is often portrayed by the media with a considerable degree of negativity. The tabloids have somehow managed to blend human rights, health and safety and political correctness into the same issue; an issue that many people use to explain what has gone wrong with the country. The problem is that few people are actually aware of their basic human rights, what they mean and when they can rely on them.
People in the UK are subject to three important bodies of law on human rights: the Universal Declaration of Human Rights (UDHR); European Convention on Human Rights (ECHR); and Human Rights Act 1998 (HRA).
UDHR is a charter for all men, women and children in the world. The 30-article declaration covers fundamental rights and freedoms such as the “right to life, liberty and security” (Article 3) and the right to be recognised by the law (Article 6). UDHR provides the basis for all human rights legislation in the world.
ECHR, which came into effect in 1953, is a far more compelling document. The convention outlines 18 articles on human rights, including those pertaining to life (Article 2), torture (Article 3), servitude (Article 4), liberty and security (Article 5), fair trial (Article 6), privacy (Article 8) and discrimination (Article 14). Article 3 often gains a mention in the news as suspected terrorists who fight extradition orders tend to argue that they might face torture abroad.
HRA serves to entrench the articles of ECHR into domestic legislation. In doing so, however, Parliament left open the provisions to interpretation. Privacy laws, for example, are notably weak in the UK, so Britons who expect this as a fundamental freedom can encounter difficulties in court. HRA also implements human rights laws as prescribed by decisions of the European Community (though this area of the law is far too convoluted to explore at this opportunity). What matters is that the human rights of Britons are protected by international, European and UK law, but what exactly does this mean?
Making a Claim
The remedies available for a breach of human rights legislation in the UK are much the same as they are for other types of claim; for example, head injury compensation can be awarded in a workplace accident or clinical negligence case, while damages may also be available if human rights laws are breached. The problem is that any such breach must involve the HRA, which was passed by Parliament and is open to the interpretation of the domestic courts. Thus, if a person suspects that his fundamental human rights have been breached, he must initially rely on UK law to provide a suitable remedy. Because the HRA is not a word-for-word copy of the ECHR, problems sometimes arise.
A domestic court can submit a Section 4 (HRA) declaration of incompatibility if UK legislation is deemed to be incompatible with the ECHR, but the claimant is unlikely to be awarded a remedy in this scenario. Claims are often appealed in the domestic courts until they are passed to the European Court of Human Rights for clarification, but claims can also be submitted to the Court of Justice of the European Union, which can compel Member States to honour their European Community obligations. Whatever route is chosen, the process of defending fundamental human rights can be lengthy, complicated and expensive.
Written on behalf of Barlow Robbins who also offer support and advice relating to charity law