Religion, law and the constitution

Balancing beliefs in Britain

The language of human rights now pops up everywhere, from cereal packets to Twitter, and it is impossible to click onto social media or turn on the news without hearing the phrase. However, what does it actually mean?  Like many common expressions, it depends on who is using it and why, and as lawyers, we spend a considerable amount of time looking at human rights, and obviously, from a legal point of view, we’re very interested in exactly how those words are being used.   Whilst that might sound like a boring question at first, if you’re complaining about infringement or abuse of your rights, the answer determines what, if anything, you can hope to do about it.

To put it another way, imagine an aggrieved person complaining that that they have a basic human right to privacy, because maybe they’ve caught someone reading their emails, or they’ve discovered that their gym has installed CCTV.   Where can the right that they’re referring to actually be found?  There are three possible answers to that question, and many rights exist in all three places, although some in only one or two.   We have: 1) The world of political and moral debate; 2) International Law; and 3) National Law.

Beginning with the first one, ideas in the realm of popular culture and discussion obviously do not give you rights which you can expect a judge to enforce, unless they have also been recognised by the legal framework.  For example, there’s a general moral consensus that people have a right not to be killed, and this is fortunately acknowledged by the law as well. Yet some other rights might not have made it into law in any sense, but are still powerful as ideas, and they can affect behaviour and attitudes.  Furthermore, rights have to be acknowledged morally by a large number of people before they have any chance of finding their way into an Act of Parliament.  So, for instance, there was a gathering feeling in the 1960s that women being paid less than men for the same work was hugely unfair, and without this belief in a moral right, the Equal Pay Act 1970 would have never been passed.

Of course, its true that certain rights believed in by some people will never get enough support to make it into law.  For example, there have been voices demanding the right to legally marry the partner of their own choosing, when this is a motor vehicle, but so far, support for a human right to have a wedding with a bus or a tractor has not yet really caught on!

Moving on to the second category, some human rights are recognised by International Law.  We’re going to talk more about what this means in a future blog/podcast, but basically this covers agreements between countries, and despite the fact that this is an important step, if a right is only recognised in International Law, it won’t give a person living in the United Kingdom the possibility of going to court and complaining if it gets trampled on.

The truth is that the kind of rights which have the most powerful recognition are those which are part of the law of the State, because here individuals can take legal action if they aren’t respected. In this country, we have given the rights in the European Convention on Human Rights special status, and brought them within our law through the enactment of the Human Rights Act. Nevertheless, there are other forms of human rights protection which operate alongside this, as the Common Law (the part of our system described in the rulings of judges) also contains fundamental freedoms. The Supreme Court has been clear that these are still relevant and important in the twenty-first century, and will survive even if the Government eventually repeals the Human Rights Act.   In other words, protection for certain basic rights and freedoms is arguably one of the building blocks of our Constitution (and yes, we do have a Constitution, even if parts of it are unwritten, and the written parts are scattered across various different documents).

That isn’t quite the end of the story though, because even in the case of rights which are found in all three of our categories, we still face the challenge of applying them in the real world.  Going back to our example of a right to privacy, this is acknowledged by most people in moral terms, is recognised in International Law by virtue of Article 8 of the European Convention on Human Rights (which protects the right to private and family life) and is made part of our domestic law by the Human Rights Act, but we still have to work out what it means.  The right is not absolute, and it can be limited for good reason, such as the detection and prevention of crime.  It also might have to be balanced against other people’s rights.   For instance, a reality TV star might argue that a gossipy magazine article revealing details of their recent break-up would infringe their right to private life, but what about the right to freedom of expression enjoyed by the columnist who is keen to publish the piece? Does the celebrity status of the person complaining make any difference, and is it relevant that the sleazy journalist is mainly motivated by a desire to make a fat pile of cash?

The more you ask about human rights, the more complicated and interesting the picture becomes. Most observers can agree that they are fundamental freedoms to which all people are entitled just by virtue of being human, but beyond this, there are a plethora of fascinating questions to dive into, which is our plan for the rest of this short series.