Human Rights Act 1998
The Human Rights Act 1998 incorporated the provisions of the European Convention on Human Rights into UK law in the face of strong opposition. For example, Lord Denning voiced the widely-held view that we should not be bound by the decisions of judges who do not know our way of life, nor anything of our common law.
The main rights covered by the Act are as follows:
Article 2: Right to life
Article 3: Prohibition of ill treatment
Article 4: Prohibition of slavery and forced labour
Article 5: Right to liberty and security
Article 6: Right to a fair trial
Article 7: No punishment without law
Article 8: Right to respect for private and family life
Article 9: Freedom of thought, conscience and religion
Article 10: Freedom of expression
Article 11: Freedom of assembly and association
Article 12: Right to marry
Article 14: Prohibition of discrimination. This leads to the impenetrable maze of UK discrimination law, the opaqueness of which is fully analysed in Chapter 3 (Mystery).
Article 1, Protocol 1: Protection of property.
These principles have been developed by a large mass of case law in the European and UK courts. Human rights law has become a huge subject in its own right. Its scheme of a basic statutory framework, developed by case law to become a sprawling and incomprehensible mass, is indistinguishable in concept from, for example, tax law.
The clarity and simplicity of the European Convention on Human Rights is now submerged in a lawyer-created mesh of endless interpretation and sophisticated analysis. Major human rights textbooks are large, expensive and highly technical. They are indistinguishable in style and layout from other technical law textbooks.
Individual and collective human rights
For an ex-miner in Blaenau Gwent, suffering from a terminal lung disease, who develops a raging toothache, and cannot afford dentistry, it is of great solace to know that a Queen’s Counsel in chambers in Lincoln’s Inn has worked night and day to ensure that he has freedom of religion.
When my own father was dying, and no ambulance could be found to take him from hospital to a hospice, so that I had to pay a private ambulance to travel fifty miles, it was most reassuring for me to know that it was unlawful for me to be discriminated against on the grounds of my ethnic origins and that this right would be protected by a coterie of London QCs.
The rights protected by the Act of 1998 are generally recognised as civil and political rights, largely aimed at the protection of individuals. Social and economic rights are not covered. There is, for example, no right to work and no right to healthy and safe working conditions.
While the current trend towards the protection of human rights in relation to, for example, freedom of speech and the right to a fair trial, is without doubt desirable, progressive and moving towards human emancipation and social justice, these are essentially individual civil and political rights. They do not address social and economic issues. It is, for example, of little comfort to those living in the most deprived circumstances that liberal lawyers from London are willing to earn huge sums to protect their right to freedom of religion.
The human rights industry in England is rarely criticised from the left. It is normally selected for abuse by populist politicians and journalists. But this does not mean that it is beyond criticism. It should be realised that there is a substantial body of academic opinion, particularly in developing countries, which is highly critical of the Western emphasis on individual civil and political rights.
This has been described as the little magic territory of human rights which is just civil and political. It has also been pointed out that before people get to political rights they want to know what to do about Aids and what to do about food and water.
In 1986 Tony Gifford made the following points:
The most profound injustices in our society stem from political and economic, rather than legal causes.
Legal rights can do little to enrich the lives of those who have no jobs.
If no money is spent on building new homes, then the theoretical rights of homeless people and slum dwellers are not of great value.
If the opportunity for a good education and good health is a perquisite for the wealthy, then the idea of equality before the law becomes a fraud.
Lord Bingham has pointed out that there is no universal consensus as to fundamental rights and freedoms. In some developing countries, a higher premium is put on economic growth than on the protection of human rights.
Contents of current English textbooks on human rights
An examination of current English human rights textbooks gives some indication of the coverage of individual as opposed to collective rights in the main source material. English law does not deal with collective human rights.
Social and economic rights are mentioned only in passing, for example:
Clayton & Tomlinson, The Law Of Human Rights: The list of contents has one reference to social and economic rights, which is a chapter on the right to education. The subject index has three entries for economic rights and three for social rights. A total of 4 pages out of 1600.
Starmer, European Human Rights Law: 15 pages on the right to education. 10 pages on welfare benefits. No index references to economic and/or social rights.
Simor and Emmerson, Human Rights Practice: 3 index entries on economic rights.
Feldman, Civil Liberties and Human Rights in England and Wales: 11 pages out of 1100 on social and economic rights.