UK Human Rights in Comparison with the EU and International Law - Essay Example

UK Human Rights in comparison with the EU and International Law Introduction The protection of human rights in the international community is ensuredthrough a series of appropriately customized legal texts. These texts – that are going to be presented analytically in the sections that follow – are considered to be effective towards the protection of the rights of individuals around the world; however, in practice the respect of the rights of people internationally faces severe delays mostly because the governmental and the international authorities avoid to intervene in cases where the protection of rights can lead to the conflict with national political power. In the case of Britain, the main legal text for the protection of human rights is the Human Rights Act 1998 as it has been amended through a series of legal provisions published until today. Despite the fact that in UK many efforts have been made in order to improve the conditions related with the protection of human rights, in practice a series of failures have been identified in the application of the Human Rights Act 1998 and the other legal texts referring to the protection of human rights. Towards this direction it is supported that ‘Britain has one of the worst human rights records in Europe and faces investigation over its failure to comply with a series of European court rulings’1. On the other hand, the recognition of human rights in Britain has been often related with specific sectors of the society, like the health sector. In this context, it has been noticed that ‘there was much speculation about the potential impact of the Human Rights Act 1998 on established principles of health care practice; now the statute has been "bedded in", predictions that existing good practice would not fall foul of the legislation provided it was demonstrable, have proved to be broadly accurate’2. As it will be explained below, the Human Rights Act 1998 has been extensively transformed through a series of laws that have been published since 1998 (i.e. after the establishment of Human Rights Act 1998). In accordance with a speech of Jack Straw in 2006 (published through the website of Foreign and Commonwealth Office) the following issues can be highlighted regarding the protection of human rights in England: ‘human rights remain at the heart of the foreign policy agenda and the UK works through international forums and bilateral relationships to spread the values of human rights, civil liberties and democracy’3. This paper will evaluate the development of English law on human rights in comparison with the international law on the specific issue (with a special reference to USA and Australia). In this context, the EU laws and the laws of countries within the international community, like USA and Australia, are going to be examined in order to identify the main elements of human rights law as they are highlighted and respected by countries internationally. The potential conflict among existed legislation will be also discussed (if identified) and appropriate courses of action are going to be suggested. Chapter One In order to understand the criteria used by legislators around the world (including UK) in order to develop the various provisions regulated the human rights we should refer primarily to all aspects of human rights as a concept of significant importance for both governments and public within the international community. In this context, it is stated that human rights can be characterized as ‘basic moral guarantees that people in all countries and cultures allegedly have simply because they are people’4. On the other hand, it is supported that ‘the term ‘human rights’ has mainly positive associations (with liberty, security, freedom of expression etc) but there is little understanding of the application of human rights / the HRA to normal life / public service delivery’5. In accordance with the above definitions, human rights should be extensively protected by the law because they are the rights that guarantee the development (personal, social and professional) of people within the community. The legal framework applied in Britain for the protection of human rights can be understood only if referring to the whole context of law in the specific country. As already known, common law is the legal system applied in Britain through all the country’s history. For this reason, it would be necessary to mention a definition of the common law – at least presenting its general characteristics. Towards this direction it is supported that ‘the common law is that which derives its force and authority from the universal consent and settled customs of the people; it has never received the sanction of the Legislature by express act, which is the criterion by which it is distinguished from the statute law; it has never been reduced to writing’6. One of the main legislative texts for the regulation of human rights in Britain is the Human Rights Act of 1998. The above mentioned law has been amended through the years mainly through the following laws: the Constitutional Reform Act 2005 and the Appropriation Act 2005. In Europe, human rights are protected primarily through the European Convention for the Protection of Fundamental Rights and Freedoms of 1948 (and its protocols, especially no 4, 6, 7, 11 and 12 protocols). The above legislative text also refers to the measures that should be taken by the member states in order to adapt their laws with the provisions of the above Convention. In the European Union area, the European Convention for the protection of Human Rights is considered to be a legislative text of major importance referring primarily to the right to life (article 2), the right to liberty (art.5), the right to expression (art. 10) and a series of other rights (most of which are already recognized by the national law of all member states). Apart from the recognition of rights, the main characteristic of the Human Rights Act of 1998 is that it refers to a series of actions that should be avoided – stated in a different way: prohibitions are set regarding specific actions, like torture (art. 3) and discrimination (art. 14). The latter is one of the articles most used in cases brought before the European Court of Justice – and especially the European Court of Human Rights. Referring to the international community and specifically to USA the primary legislative text applied on this country regarding the protection of Human Rights is the Universal Declaration of Human Rights, of 1948 which states that: ‘All human beings are born free and equal in dignity and rights’ They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood (Article 1) … ‘Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’ (Article 2)’7. A series of Treaty Reports are also published periodically by the country. In 2008, indicatively the following reports have been submitted by the countries’ executive authorities: the International Covenant on Civil and Political Rights (ICCPR), the Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the Convention On the Elimination of All Forms of Racial Discrimination (CERD) and the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict. In another country, Australia, the protection of human rights is achieved mainly through the Human Rights Act of 2004 and the International Bill of Human Rights8. In the past, there was no particular legislative text (i.e. a Human Rights Act or other equivalent) offering protection to the citizens of Australia from the possible violation of their rights. In other words, the Human Rights Act of 2004 has been the first legislative text established by the Australian government regarding the protection of the human rights. The European Court of Human Rights has to resolve many disputes regarding the respect of human rights. In the case HATTON AND OTHERS v. THE UNITED KINGDOM - 36022/97 [2003] ECHR 338 (8 July 2003) the applicants stated that ‘government policy on night flights at Heathrow Airport gave rise to a violation of their rights under Article 8 of the Convention and that they were denied an effective domestic remedy for this complaint, contrary to Article 13 of the Convention’ (par. 3). Indeed, in the above case the Court held that there is ‘a violation of the procedural right to an effective domestic remedy under Article 13 of the Convention in respect of the applicants complaints under Article 8, but no violation of the substantive right to respect for private life, family life, home and correspondence under Article 8 itself’ (par. 147) On the other hand, in SORENSEN and RASMUSSEN v. DENMARK - 52562/99 ; 52620/99 [2006] ECHR 24 (11 January 2006) the applicants stated that ‘the existence of closed-shop agreements in Denmark in their respective areas of employment had violated their right to freedom of association, secured by Article 11 of the Convention’. The Court after the examination of the various events related with the case held that ‘the respondent State has failed to protect the applicants’ negative right to trade union freedom; accordingly, there has been a violation of Article 11 of the Convention in respect of both applicants’ (par. 76, 77) In the Bovis Homes Ltd v New Forest District Council [2002] EWHC 483 (Admin) (25 January 2002) the applicant stated that ‘the adoption by the New Forest District Council of its local plan was unlawful; the particular decision-making process breached its human rights contained within Article 6 of the European Convention on Human Rights (par. 2). In the above case the judge stated that ‘‘I do not consider that section 3 of the Human Rights Act assists’(par. 379) Of course, in any case, the law continues to have the protection of human rights as a priority: the provision of the article 2 of Human Rights Act 1998 which states that ‘Everyone’s right to life shall be protected by the law’9 should be respected by all legislative and judicial authorities in the country. Chapter Two As already noticed above, in UK the protection of human rights is guaranteed primarily by the Human Rights Act of 1998. The specific legislative text has been proved to be particularly effective regarding the protection of human rights in Britain10. In fact approximately all country’s (Britain’s) organizations and public bodies recognize its value; the importance of the specific Act is also proved through the relevant case law developed after the establishment of this legal text in UK. In this context, it is stated that ‘the relevant bodies which embody reproductive issues and concerns are for example the National Health Service (NHS) and the regulatory bodies such as the Human Fertilisation and Embryology Authority (HFEA) (Human Fertilisation and Embryology Authority Act, 1990) and the Human Genetics Advisory Commission (HGAC)’ (Bahadur, 2001, 785). Other organizations have also aligned their operational strategies in accordance with the rules of Human Rights Act 1998. In any case the failure of employers in Britain to meet the standards set by the above legislative text is effectively handled by the country’s Courts. On the other hand, this law (Human Rights Act 1998) has also specific disadvantages. More specifically, it has been found to be rather inadequate in order to face specific problems appeared across the country related with the daily activities of people in the country and particularly their relationship with the law. Towards this direction, it is supported that ‘the general public perception is that there is a need for a law to protect human rights in the UK, but that too many people – especially asylum seekers and immigrants – take advantage of the HRA’11. Moreover, the protection of human rights cannot be achieved without referring to all aspects of these rights; in other words all aspects of these rights should be appropriately protected by the law; a ‘collective’ legal text that will not make clear distinctions and will not offer particular type of protection to each one of these rights should be rejected by the legislators and the judges in Britain. However, it seems that in UK human rights are closely monitored by all legal representatives. For this reason, it is noticed that in Britain ‘key human rights principles such as respect, dignity, equality and fairness are highly valued, both in relation to public service delivery and more widely, but are not generally associated with human rights/ the HRA’12. Despite the fact that extensive efforts are made in UK in order for human rights to be appropriately protected, in practice many aspects of human rights in Britain are still violated. From another point of view, the power of citizens in UK to bring their case before of the European Court of Human Rights has been limited after the introduction of the Human Rights Act of 1998, the application of which started in October of 2000. The specific legislative text put limits regarding the use of the European Convention of Human Rights in the terms that additional protection is offered to people in Britain regarding the protection of human rights. In this context, it is made clear that with the introduction of the Human Rights Act of 1998 in Britain ‘the extensive body of Convention law, as well as decisions of the domestic courts of other states which have incorporated the Convention, now becomes an integral part of UK jurisprudence; broadly, the Act applies to public and not private bodies’13 (Bahadur, 2001, 785). The protection of human rights both by the national and the European Courts is generally quite effective; in some cases difficulties can appear especially regarding the identification of the (real) facts related with the specific case. As an example in GORZELIK AND OTHERS v. POLAND - 44158/98 [2004] ECHR 73 (17 February 2004) the applicants claimed that there was ‘a breach of Article 11 of the Convention in that they had been refused permission to register an association called the “Union of People of Silesian Nationality”’ but the court held that ‘the Court concludes, therefore, that it was not the applicants freedom of association per se that was restricted by the State’ (par. 106) On the other hand, in SAADI v. THE UNITED KINGDOM - 13229/03 [2008] ECHR 80 (29 January 2008) the applicant stated that ‘he had been detained in breach of Articles 5 § 1 and 14 of the Convention, and that he had not been given adequate reasons for the detention, contrary to Article 5 § 2’ (par.3). The Court held that ‘in the instant case that a seven-day period of detention “cannot be said to have exceeded that reasonably required for the purpose pursued”; in so doing, it is accepting a period of detention which it does not generally sanction in the other cases of deprivation of liberty contemplated by Article 5 of the Convention’ At a next level, the rights of children (as they are also protected from the European Convention on Human Rights) have been examined by the England and Wales Court of Appeal in the case Williamson & Ors v Secretary of State for Education and Employment [2002]. In the above case the Court held that ‘as is the point at which such chastisement becomes unacceptable to the extent that a failure on the part of the state to use the criminal law to control the parent engages the states responsibility under article 3 of the Convention’ In the case JOHN GOODWIN v UNITED KINGDOM : JOHN HIGHAM v UNITED KINGDOM (2008) European Court of Human Rights (J Casadevall P) 22/1/2008, the applicants ‘complained under the European Convention on Human Rights Art.14 taken in conjunction with Protocol 1 Art.1 about the refusals of the respondent state to grant them widows bereavement allowance (WBA) or equivalent’. On this issue the court held that ‘there were no facts or arguments from the state that would lead to any different conclusion in the instant cases; the difference in treatment between men and women as regards entitlement to WBA was not based on any "objective and reasonable justification"; accordingly, Protocol 1 Art.1 and Art.14 had been violated’ Chapter Three The interpretation of the principles related with the protection of human rights has been a challenging task for all countries around the world. In most cases, the solution is given by the courts which examine thoroughly the events involved14 and proceed to the appropriate decision. For this reason, in this Chapter the relevant case law will be presented in order to show the weaknesses of the law regarding the regulation of the human rights disputes (with no intervention of the courts) and the effectiveness of Courts when get involved in the procedure. In the case STOLL v. SWITZERLAND - 69698/01 [2007] ECHR 1060 (10 December 2007) the applicant claimed that ‘his conviction for publishing “secret official deliberations” had been contrary to Article 10 of the Convention’. The Court held that ‘in weighing the interests at stake in the present case against each other in the light of all the relevant evidence, the domestic authorities did not overstep their margin of appreciation; accordingly, the applicants conviction can be said to have been proportionate to the legitimate aim pursued. It follows that there has been no violation of Article 10 of the Convention’ (par. 162) On the other hand, in ELCI AND OTHERS v. TURKEY - 23145/93;25091/94 [2003] ECHR 588 (13 November 2003) the applicants supported that ‘in November and December 1993 they were taken into detention by law enforcement officers on the pretext of involvement in criminal activities, but in reality because they had represented clients before the State Security Court and been involved in human rights work; they all claimed that their detention was unlawful (Article 5 of the Convention)’. The Court after examining carefully the facts related with the specific case held that ‘the Court does not find, on balance, that there has been a significant hindrance in the applicants right of individual petition in breach of former Article 25 of the Convention; as to the recent general complaint of hindrance, made by the other applicants under Article 34 of the Convention, the Court is unable to take cognisance of it as it has been lodged out of time (Article 35 §§ 1 and 4 of the Convention)’ (par. 715-716) Towards the same direction in case N, R (on the application of) v Secretary of State for the Home Department [2003] EWHC 207 (Admin) (14 February 2003) where the applicant is an immigrant that he asked for asylum but his application was dismissed, the Court held that ‘the claimant is entitled to damages for breach of Article 8 of the Convention and such damages are to be assessed at a subsequent hearing. No breach of Article 3 of the Convention has been established’ (par. 205) In the case EMMANUEL OFULUE (2) AGNES OFULUE v ERICA BOSSERT [2008] EWCA Civ 7 ‘the appellants (O) appealed against a decision that the respondent (B) had acquired a property by adverse possession’; the Court dismissed the appeal suggesting that ‘the European Court of Human Rights had held in JA Pye (Oxford) Ltd v United Kingdom that the legislative provisions in issue were Convention compliant. There were no special circumstances justifying departing from that decision,R (on the application of Ullah) v Special Adjudicator (2004) UKHL 26, (2004) 2 AC 323 applied’. Moreover, in the case PAVEL BALAN v MOLDOVA (2008) European Court of Human Rights (N Bratza P) 29/1/2008 the applicant supported that ‘use of a photograph that he had taken by the respondent state as a background for national identity cards constituted an unjustified control of use of property within the meaning of Protocol 1 Art.1 to the European Convention on Human Rights’. The Court held that ‘B had possession of the photograph within the meaning of Protocol 1 Art.1; the use made by the respondent state of the photograph without Bs permission amounted to an interference with Bs property rights that was not proportionate to the aims pursued; accordingly the use made by the respondent state of Bs photograph amounted to a violation of Protocol 1 Art.1 of the Convention’. Other cases also prove the effectiveness of Courts when dealing with disputes involving in violations of human rights. In the case of SHAYAN BARAM SAADI (2008) (Grand Chamber) European Court of Human Rights (J-P Costa P) 29/1/2008 the court held that ‘Whilst the general rule set out in Art. 5(1) of the Convention was that everyone had the right to liberty, Art.5(1)(f) provided an exception. It permitted states to control the liberty of aliens in an immigration context; There had been a breach of Art.5(2) as the reason for Ss detention was not given sufficiently promptly’. Furthermore, in the case 1) OLGA YURYEVNA MASLOVA (2) FEDOR VARTANOVICH NALBANDOV v RUSSIA (2008) European Court of Human Rights (L Loucaides P) 24/1/2008, the court held that ‘the state had not provided any satisfactory or convincing explanation to disprove Ms allegations; there had been breaches of Art.3 on account of the lack of effective investigations into the allegations by M and N of ill-treatment; (4) The state had also failed to meet its obligations under Art.38(1)(a) by failing to submit documents requested by the instant court’. The issues developed above show that all legislative texts applied internationally (as well as locally) have significant disadvantages – or else they have failed to achieve the targets set by their implementation. More specifically, one of the most severe weaknesses of existed law is the fact that the procedure followed regarding the protection of human rights around the world – also in Britain is quite slow. The application for the protection of human rights may be followed by a severe attack against the person that reported the relevant event. In this case, the decision taken – in some cases – may be proved to be without particularly effect on the improvement of a person’s (victim’s) life. In this context, it is quite common the phenomenon that after reported an event of violation of human rights the victim asks the authorities to stop any action regarding the punishment of the violator (physical or mental abuse can be used against the victim in order to proceed to this decision). It should also be noticed that the recognition of human rights within the international community has not been achieved yet despite the numerous legal text that have been already published regarding the protection of human rights both nationally and internationally. On the other hand the Treaties and the Conventions signed by many countries around the world are not appropriately applied. For this reason, the establishment of organizations like the International Covenant on Civil and Political Rights (ICCPR) is considered to be a significant decision towards the achievement of an integrated protection of human rights internationally Conclusion In accordance with the above current legislation regarding the protection of human rights can be characterized as quite inappropriate. In fact, it is noticed that ‘choices need to be made in politics and public policy in managing tensions between diverse individuals and groups, and that these choices should be guided by consistent principles rather than made on an ad hoc basis’15. However, despite the fact that specific measures could be proposed and applied regarding the improvement of laws related with the protection of human rights around the world there are still other issues that should be primarily addressed. One of the most important issues is the fact that still there are no effective international bodies to monitor the application of international rules regarding the protection of human rights. Moreover, states around the world are likely to ignore the decision of these bodies related with the violation of specific human rights. In this context, any measure taken by the international organizations against the states that violate the human rights (these measures can be considered to be a punishment for the various violations taken place within a specific country with the active participation or the tolerance of the local authorities). On the other hand, referring especially to Britain, it could be stated that the country’s legal framework regarding the protection of human rights is effective but needs additional provisions. The specific issue is also highlighted by Dickens (2007, 463) who noticed that ‘the opportunities provided by the new Commission for Equality and Human Rights and the proposed Single Equality Act should be taken to address remaining weaknesses in the legislative equality package and the limitations in enforcement approaches’16. The above comments refer to a specific aspect of human rights violation: the violation of the right of equality in the workplace. However, there are many issues that need to be addressed by the British Human Rights law as the relevant Court decisions prove. In general, the legal framework of Britain regarding the protection of human rights could be characterized as effective (despite the fact that still there are issues that need to be addressed). More specifically, every issue that cannot be resolved through the Human Rights Act 1998 is usually resolved by using the European Convention of Human Rights (and specific British laws, see Appendix). However, the relevant procedure should be improved in order fo rthe protection offered to be adequately effective (as it has been already explained in previous section). In this context, it is accepted that ‘it is well recognized that the existing system of civil procedure in England and Wales is beset by excessive costs, delay, and complexity; for example, litigation is very expensive, and it is generally impossible to predict the probable costs of an action accurately in advance; cases can take many years to be heard, due to unchecked party delays and backlogs within the system’17. The effectiveness of provisions existed regarding the protection of human rights cannot guarantee the adequate protection of these rights in Britain; it is necessary that the completion of the relevant procedure to be quick enough in order for the victim to be adequately protected. In the international community (referring to the cases of USA and Australia that has been presented above) the protection of human rights also presents severe weaknesses. Despite the fact that there is a series of laws related with the protection of human rights, there are no appropriate mechanisms to monitor the establishment and the effectiveness of these laws in practice. A. References Bahadur, G. (2001) The Human Rights Act (1998) and its impact on reproductive issues. Human Reproduction, 16(4): 785-789 Chiarloni, S., Gottwald, P., Zuckerman, A. (1999). Civil Justice in Crisis: Comparative Perspectives of Civil Procedure. Oxford: Oxford University Press Dickens, L. (2007) The Road is Long: Thirty Years of Equality Legislation in Britain. British Journal of Industrial Relations, 45(3): 463-494 Fenwick, H. (2000) Civil Rights, New Labour, Freedom and the Human Rights Act: Pearson Publishing Foreign and Commonwealth Office (2006), available at http://www.fco.gov.uk/servlet/Front?pagename=OpenMarket/Xcelerate/ShowPage&c=Page&cid=1007029393564 Hagger, L. (2004) The Human Rights Act 1998 and medical treatment: time for re-examination. Archives of Disease in Childhood, 89: 460-463 Hoffman, D., Rowe, J. (2006) Human Rights in the UK: Pearson Publishing, 2nd Edition Ministry of Justice (2008) Human Rights Insight Project http://www.justice.gov.uk/docs/human-rights-insight-full.pdf O’ Flaherty (2002) Human Rights and the UN: Practice before the Treaty Bodies’, 2nd edition Phillips, T. (2007) Equality and human rights: siblings or just rivals? Benefits, 15(2): 127-138 Ritter, E. (1910) Moral Law and Civil Law, Parts of the Same Thing. Westerville: American Issue Publishing Company Smith, R. (2005) International Human Rights, 2nd edition The Internet Encyclopedia of Philosophy (2008) http://www.iep.utm.edu/h/hum-rts.htm Verkaik, R. (2005) Britain in the dock for human rights failures after more than 100 guilty judgements filed, [online], available at http://www.independent.co.uk/news/uk/crime/britain-in-the-dock-for-human-rights-failures-after-more-than-100-guilty-judgements-filed-509348.html Woogara, J. (2001) Human Rights and Patients’ Privacy in UK Hospitals. Nursing Ethics, 8(3): 234-246 B. CASES UK Bovis Homes Ltd v New Forest District Council [2002] EWHC 483 (Admin) (25 January 2002) EMMANUEL OFULUE (2) AGNES OFULUE v ERICA BOSSERT (2008) [2008] EWCA Civ 7 N, R (on the application of) v Secretary of State for the Home Department [2003] EWHC 207 (Admin) (14 February 2003) Williamson & Ors v Secretary of State for Education and Employment [2002] EUROPEAN COURT OF HUMAN RIGHTS ELCI AND OTHERS v. TURKEY - 23145/93;25091/94 [2003] ECHR 588 (13 November 2003) OLGA YURYEVNA MASLOVA (2) FEDOR VARTANOVICH NALBANDOV v RUSSIA (2008) European Court of Human Rights (L Loucaides P) 24/1/2008 GORZELIK AND OTHERS v. POLAND - 44158/98 [2004] ECHR 73 (17 February 2004) HATTON AND OTHERS v. THE UNITED KINGDOM - 36022/97 [2003] ECHR 338 (8 July 2003) JOHN GOODWIN v UNITED KINGDOM : JOHN HIGHAM v UNITED KINGDOM (2008) European Court of Human Rights ( J Casadevall P) 22/1/2008 PAVEL BALAN v MOLDOVA (2008) European Court of Human Rights (N Bratza P) 29/1/2008 SAADI v. THE UNITED KINGDOM - 13229/03 [2008] ECHR 80 (29 January 2008) SHAYAN BARAM SAADI (2008) (Grand Chamber) European Court of Human Rights (J-P Costa P) 29/1/2008 SORENSEN and RASMUSSEN v. DENMARK - 52562/99 ; 52620/99 [2006] ECHR 24 (11 January 2006) STOLL v. SWITZERLAND - 69698/01 [2007] ECHR 1060 (10 December 2007) C. Statutes Constitutional Reform Act 2005 Appropriation Act 2005 Prevention of Terrorism Act 2005 Asylum and Immigration Act 2004 The Human Rights Act 1998 European Convention for the Protection of Fundamental Rights and Freedoms Protocol No. 4 to the Convention for the protection of Human Rights and Fundamental freedoms, securing certain rights and freedoms other than those already included in the convention and in the first protocol thereto, as amended by protocol No. 11 Protocol No. 6 to the Convention for the protection of Human Rights and Fundamental freedoms concerning the abolition of the death penalty, as amended by protocol No. 11 Protocol No. 7 to the Convention for the protection of Human Rights and Fundamental freedoms, as amended by protocol No. 11 Protocol No. 12 to the Convention for the protection of Human Rights and Fundamental freedoms Charter of Fundamental Rights of the European Union (2000/C 364/01) Read More