Human Rights

Human Rights are rights which every human being has simply by reason of being human. They are not conditional on being part of any given legal system: rather every legal system is obliged to give effect to them in the detailed provisions it makes.

The English common law (i.e the law which was found essentially to already exist in Twelfth Century England by Royal judges appointed by King Henry II) recognised fundamental rights, the classic exposition of which can be found in Commentaries of the Laws of England (1765) by the judge, Sir William Blackstone. The Common Law system uses a series of "causes of action" whereby specific wrongs have a legal remedy, such as damages (compensation) or injunction. The names commonly given to natural human rights are not themselves the"causes of action" but are part of the rationale behind the rules governing the causes of action. For example the right to liberty is recognised by the writ of Habeas Corpus (literally "Produce the Body" in Latin - in the Middle Ages it was common to refer to producing, confining, imprisoning etc. a person's "body", as distinct from their spirit: use of the word "body" did not imply a dead body) by which anyone detaining anyone could be required to bring the detained person to court so that the court could rule whether there was lawful authority for the detention.

Since the Revolution of 1688, the constitutional position has normally be held to be that Parliament is supreme and can (as a matter of strict English law) make any law, including a law which conflicts with basic human rights. However, apart from doubts expressed in recent cases, such as R (Jackson) v Attorney General, as to whether that would be so in extremis, English law has long had a principle of interpretation whereby it is assumed that Parliament does not intend to pass laws which violate natural human rights unless Parliament uses very specific and forceful words making that plain. In normal circumstances a Bill presented to Parliament which plainly and clearly violated human rights would not receive a majority and so would not become law. A recent example is the 2005 proposal by the Labour Government to allow detention for 90 days before charge, which was defeated in the House of Commons, with 49 Labour backbenchers defying the party whip.

The language of human rights is found in many constitutional instruments around the world. The Declaration of Independence of the United States of America (1776) states: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights..." Not everyone has agreed that human rights are "self-evident". The philosopher and jurist, Jeremy Bentham (1748-1832) notoriously described natural rights as "nonsense upon stilts". Jeremy Bentham was generally in favour of legislatures passing laws giving as much freedom and happiness to the citizen as was considered practical but he objected to the suggestion that human beings have natural pre-existing rights which the legislature is duty-bound to give effect to. In this he differed from the long tradition followed by writers such as John Lock (1632-1704). This debate continues: see, for example, C. S. Lewis The Abolition of Man.

After the Second World War, with the full horrors of Nazism in Germany known, there was much soul-searching among those who assumed that human rights would in practice be safe in any democracy. Unlike the Communist Party in the Soviet Union, which came to power by a violent revolution, the Nazis came to power by democratic vote, and, again by democratic vote the German Parliament passed the Enabling Act changing the constitution to allow Hitler's government to pass laws without parliamentary debate. The result of this soul searching was the codification of human rights in the European Convention on Human Rights, an international treaty made in 1953. The Convention established the European Court of Human Rights in Strasbourg to adjudicate on any claims that any signatory country was not observing the Convention.

The United Kingdom was a signatory to the Convention from the start but did not incorporate the Convention into English law - i.e. the UK relied of the fact that human rights were protected by the English Common law to ensure that no violations of Convention Rights would occur in the UK. Over time there were a number of successful cases brought by British citizens to the Strasbourg Court so that it became clear that in certain areas the Common Law did not provide the full protection of human rights which the Convention - as interpreted by the Strasbourg Court - required. As a result the Human Rights Act 1998 was passed by the UK Parliament incorporating the Convention into UK law. Since that Act came into force in 2000, the position has been somewhat complex but can be summarised as follows:

  • There are two bodies of Human Rights Law, the common law, and the Convention.

  • Common law human rights law is enforced by the ordinary causes of action in the common law. It is not possible to bring a claim at common law complaining of human rights violations as such, but an appropriate cause of action can be chosen, depending on the circumstances, and the court will decide the case taking into account the natural rights principles of the common law, together with the interpretive principle which presumes that statues passed by Parliament do not take away fundamental human rights.

  • Convention human rights law can also be enforced by ordinary causes of action at common law, and the Human Rights Act 1998 provides specific statutory authority for the interpretation of legislation in accordance with Convention Rights as interpreted by the Strasbourg Court. The rulings of the Strasbourg Court on the interpretation of the Convention are not strictly binding in English Law, but s.2 of the HRA requires English Courts to "take into account" such rulings.

  • As well as the effect of the HRA on interpretation (when an ordinary cause of action is brought) s.7 of HRA provides a new statutory cause of action whereby a claim for damages may be made against any public authority which acts in a way which is incompatible with Convention Rights.

  • Generally speaking, claims of, or involving, allegations that human rights have been violated, are brought in the ordinary courts but there is an exception where the claim arises from the actions of the police or security/intelligence services covered by the Regulation of Investigatory Powers Act 2000 (e.g. phone tapping, the use of covert human intelligence sources, covert entry onto property etc.). In that case claims involving Convention Rights are heard by a special tribunal, the Investigatory Powers Tribunal, whereas any common law human rights claims in such circumstances are tried in the ordinary courts.

The rulings of the Strasbourg Court have been subject to some comment by English jurists. It is sometimes said that in certain areas, the Strasbourg Court takes a minimalist approach (for example until very recently the Strasbourg Court has held that no human rights issues can ever arise where an employee's religious or conscientious beliefs conflict with requirements imposed by the employer, however arbitrary, since the employee is always free to resign and seek employment elsewhere) but in other areas the Strasbourg Court finds rights to exist which many would not consider fundamental human rights (for example even those who think that serving prisoners should be able to vote in elections might hesitate to describe such as a fundamental human right for fear of devaluing the meaning of fundamental human rights).

Most cases brought in the English courts do not explicitly rely on human rights arguments - they rely simply on the rules of English law which are (or should be) themselves consistent with human rights. However in some cases where there is doubt about how a law should be interpreted a human rights argument can point to one of two possible interpretations as being the correct one.


The above explanation of the law is only an overview and in order to be reasonably concise I have had to leave some details out - details which are likely to affect what the law would say about your own situation. So please do not rely on the above but contact me for advice

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