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Why human rights are more critical than ever in a time of turmoil. By Stephen Cragg KC
How do we decide who is an extremist? Who has the right to protest? What factors should stop a person being deported? How should the death of a detained person be investigated? How should an elderly person be looked after in a care home? Should the police be able to use your image in face recognition technology?
These questions are debated daily in the media, vociferously on both sides, but what is the legal framework which assists us – lawyers and members of the public in Britain – to provide the parameters for these debates, in particular as a potentially fractious 2024 election approaches?
One touchstone is human rights law which can provide answers to many of these issues. To attempt to silence someone by labelling that person an extremist, may amount to a breach of their right to freedom of speech (Handyside v UK). To tell protest groups that they have demonstrated enough to make their point may well be a breach of their right to freedom of association (Redmond-Bate v DPP). Deporting someone from the UK may be a disproportionate breach of their right to respect for family life, if they have children, a home, a partner in the UK (Unuane v UK). Carrying out a cursory investigation into a death in custody, is likely to be a breach of the right to respect for life (R (Middleton) v HM Coroner for Western Somerset). Failing to provide a minimum level of care for an elderly disabled person might amount to inhuman and degrading treatment (R (Bernard) v Enfield LBC). And using facial recognition technology can be a breach of privacy rights and also discriminatory (R (Bridges) v Chief Constable of South Wales Police).
But even though human rights law provides guidance on all these issues (not always of course in favour of someone seeking to assert their applicability), somehow human rights have got a bad name in the UK. It has been possible to paint the Human Rights Act 1998 (HRA) as applicable to only a small group of people, and not for all of us – as an elderly relative said to me, ‘That’s just for foreigners isn’t it?’ It has also been possible to present the European Court of Human Rights (ECtHR) as a ‘foreign’ court (it is not a ‘domestic’ court for any country), simply because it is based in France.
© Getty images/iStockphoto
Our international reputation is suffering as a result of our ambivalence to human rights. The World Report 2024 by Human Rights Watch is highly critical of the UK’s performance on human rights in 2023. The UK government ‘eroded domestic human rights protections and reneged on important international obligations’. New laws criminalised protestors, and limited strikes, and the ‘government again failed to take meaningful steps to tackle institutional racism and address past wrongs’. Crucially, the UK’s ‘nose-diving domestic human rights record undermined its efforts to promote the rule of law and human rights globally’.
There is an argument that being part of the European Convention of Human Rights (ECHR), and the xenophobic views that seems to encourage among some, is part of the problem and a diversion from the accepted general need to protect human rights. Commentators like Lord Sumption say that ‘no responsible critic of modern international human rights law proposes to do away with fundamental rights’, but that the UK can set out its own bill of rights and that in any event ‘many of the rights which the convention proclaims were part of British law long before the convention was conceived’. Sir Malcom Rifkind (in response to Lord Sumption) joined many others in pointing out that being part of the ECHR is essential to show solidarity with other like-minded nations and ‘it would be the height of stupidity and irresponsibility for the UK to throw the baby out with the bathwater’ over disagreements about the reach of the Strasbourg Court, allying us with Russia as the only country to have left the Convention in recent times.
Whatever your take on this issue, anyone who follows the judgments of the senior courts in the UK when difficult human rights issues are involved will be struck by how mainstream Strasbourg law has become, and the diligence with which judges seek to understand and apply both domestic and Strasbourg lines of authorities. A good recent example (although there are many) is the judgment in R (Dunne) v the Independent Office of Police Conduct where the issue was whether the IOPC when investigating a complaint about the infliction of life-changing injuries by a police officer, were bound to apply standards of investigation which complied with Article 2 ECHR (the right to life) as interpreted by the Strasbourg courts. As well as a lengthy analysis over 40 paragraphs on this issue, Ritchie J produced an appendix to his judgment listing over 20 ECtHR judgments he had considered in reaching the conclusion that the IOPC was so compelled.
Things have certainly moved on from the early days of the HRA – I recall a case in the House of Lords about the rights and dignity of disabled people when my leader made it clear he would do everything he could to avoid referring to human rights, even though they were at the heart of the case. The current cadre of judges will have grown up with the HRA (in force now for almost a quarter of a century), and the body of case law is now significant, mainstream and entrenched.
So it is time to recognise the central part that human rights have in all our lives. But it is not all about needing human rights to hold the fort against illiberalism and the threat of authoritarianism. One organisation which always seems to me to epitomise why human rights should be seen as so important is the British Institute of Human Rights (BIHR) which for years has supported people and organisations to use human rights advocacy and approaches in their everyday life to achieve positive social change. The BIHR website is full of stories of people who have asserted their case for benefits, justice, services, liberty and family by framing their claims in the language of human rights when speaking to a whole range of national and local authorities.
And that’s why human rights are crucial in the UK today. Not only do they provide benchmarks when controversial and divisive issues are contested in Parliament and on the streets, and enable courts to judge when a line has been crossed. Not only does compliance with human rights law in the UK put us in good standing with the rest of the global community and give us the moral right to call out human rights abuses in other countries. Perhaps more importantly, adherence to human rights standards, enshrined at present in the HRA, provide a structure for everyone concerned about dignity, freedom and justice in their daily lives. They are also a bulwark against policies which demonise minorities, and as BIHR says we should ‘aim for the lightbulb moments – when people make the connection between human rights and the work they do every day’.
Case references
Handyside v UK (1979-80) 1 EHRR 737
Redmond-Bate v DPP [1999] EWHC Admin 732, [2000] HRLR 249
Unuane v UK (2021) 72 EHRR 24
R (Middleton) v HM Coroner for Western Somerset [2004] 2 AC 182
R (Bernard) v Enfield LBC [2002] EWHC 2282 [2003] HRLR 4
R (Bridges) v Chief Constable of South Wales Police [2020] 1 WLR 5037
R (Dunne) v the Independent Office of Police Conduct [2023] EWHC 3300 (Admin)
Stephen Cragg KC is a barrister at Doughty Street Chambers practising in human rights law. He was Chair of the Bar Human Rights Committee (BHRC) for the two years 2022-23 and is now a member of BHRC’s advisory board.
How do we decide who is an extremist? Who has the right to protest? What factors should stop a person being deported? How should the death of a detained person be investigated? How should an elderly person be looked after in a care home? Should the police be able to use your image in face recognition technology?
These questions are debated daily in the media, vociferously on both sides, but what is the legal framework which assists us – lawyers and members of the public in Britain – to provide the parameters for these debates, in particular as a potentially fractious 2024 election approaches?
One touchstone is human rights law which can provide answers to many of these issues. To attempt to silence someone by labelling that person an extremist, may amount to a breach of their right to freedom of speech (Handyside v UK). To tell protest groups that they have demonstrated enough to make their point may well be a breach of their right to freedom of association (Redmond-Bate v DPP). Deporting someone from the UK may be a disproportionate breach of their right to respect for family life, if they have children, a home, a partner in the UK (Unuane v UK). Carrying out a cursory investigation into a death in custody, is likely to be a breach of the right to respect for life (R (Middleton) v HM Coroner for Western Somerset). Failing to provide a minimum level of care for an elderly disabled person might amount to inhuman and degrading treatment (R (Bernard) v Enfield LBC). And using facial recognition technology can be a breach of privacy rights and also discriminatory (R (Bridges) v Chief Constable of South Wales Police).
But even though human rights law provides guidance on all these issues (not always of course in favour of someone seeking to assert their applicability), somehow human rights have got a bad name in the UK. It has been possible to paint the Human Rights Act 1998 (HRA) as applicable to only a small group of people, and not for all of us – as an elderly relative said to me, ‘That’s just for foreigners isn’t it?’ It has also been possible to present the European Court of Human Rights (ECtHR) as a ‘foreign’ court (it is not a ‘domestic’ court for any country), simply because it is based in France.
© Getty images/iStockphoto
Our international reputation is suffering as a result of our ambivalence to human rights. The World Report 2024 by Human Rights Watch is highly critical of the UK’s performance on human rights in 2023. The UK government ‘eroded domestic human rights protections and reneged on important international obligations’. New laws criminalised protestors, and limited strikes, and the ‘government again failed to take meaningful steps to tackle institutional racism and address past wrongs’. Crucially, the UK’s ‘nose-diving domestic human rights record undermined its efforts to promote the rule of law and human rights globally’.
There is an argument that being part of the European Convention of Human Rights (ECHR), and the xenophobic views that seems to encourage among some, is part of the problem and a diversion from the accepted general need to protect human rights. Commentators like Lord Sumption say that ‘no responsible critic of modern international human rights law proposes to do away with fundamental rights’, but that the UK can set out its own bill of rights and that in any event ‘many of the rights which the convention proclaims were part of British law long before the convention was conceived’. Sir Malcom Rifkind (in response to Lord Sumption) joined many others in pointing out that being part of the ECHR is essential to show solidarity with other like-minded nations and ‘it would be the height of stupidity and irresponsibility for the UK to throw the baby out with the bathwater’ over disagreements about the reach of the Strasbourg Court, allying us with Russia as the only country to have left the Convention in recent times.
Whatever your take on this issue, anyone who follows the judgments of the senior courts in the UK when difficult human rights issues are involved will be struck by how mainstream Strasbourg law has become, and the diligence with which judges seek to understand and apply both domestic and Strasbourg lines of authorities. A good recent example (although there are many) is the judgment in R (Dunne) v the Independent Office of Police Conduct where the issue was whether the IOPC when investigating a complaint about the infliction of life-changing injuries by a police officer, were bound to apply standards of investigation which complied with Article 2 ECHR (the right to life) as interpreted by the Strasbourg courts. As well as a lengthy analysis over 40 paragraphs on this issue, Ritchie J produced an appendix to his judgment listing over 20 ECtHR judgments he had considered in reaching the conclusion that the IOPC was so compelled.
Things have certainly moved on from the early days of the HRA – I recall a case in the House of Lords about the rights and dignity of disabled people when my leader made it clear he would do everything he could to avoid referring to human rights, even though they were at the heart of the case. The current cadre of judges will have grown up with the HRA (in force now for almost a quarter of a century), and the body of case law is now significant, mainstream and entrenched.
So it is time to recognise the central part that human rights have in all our lives. But it is not all about needing human rights to hold the fort against illiberalism and the threat of authoritarianism. One organisation which always seems to me to epitomise why human rights should be seen as so important is the British Institute of Human Rights (BIHR) which for years has supported people and organisations to use human rights advocacy and approaches in their everyday life to achieve positive social change. The BIHR website is full of stories of people who have asserted their case for benefits, justice, services, liberty and family by framing their claims in the language of human rights when speaking to a whole range of national and local authorities.
And that’s why human rights are crucial in the UK today. Not only do they provide benchmarks when controversial and divisive issues are contested in Parliament and on the streets, and enable courts to judge when a line has been crossed. Not only does compliance with human rights law in the UK put us in good standing with the rest of the global community and give us the moral right to call out human rights abuses in other countries. Perhaps more importantly, adherence to human rights standards, enshrined at present in the HRA, provide a structure for everyone concerned about dignity, freedom and justice in their daily lives. They are also a bulwark against policies which demonise minorities, and as BIHR says we should ‘aim for the lightbulb moments – when people make the connection between human rights and the work they do every day’.
Case references
Handyside v UK (1979-80) 1 EHRR 737
Redmond-Bate v DPP [1999] EWHC Admin 732, [2000] HRLR 249
Unuane v UK (2021) 72 EHRR 24
R (Middleton) v HM Coroner for Western Somerset [2004] 2 AC 182
R (Bernard) v Enfield LBC [2002] EWHC 2282 [2003] HRLR 4
R (Bridges) v Chief Constable of South Wales Police [2020] 1 WLR 5037
R (Dunne) v the Independent Office of Police Conduct [2023] EWHC 3300 (Admin)
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