Anaya Nolan
The UK's political system protects human rights through the Human Rights Act, other legislation, and the courts and Parliament. The Human Rights Act states that all UK courts must apply the law in a way that respects human rights. The common law and other statutes passed by Parliament also play a role in protecting individual rights by imposing legal constraints on public authorities. For example, the Equality Act 2010 prevents public authorities from discriminating on the basis of race, sex, disability, and other grounds of equal treatment. However, these sources of legal rights protection are supplementary to the Human Rights Act. The UK's approach to human rights has been criticised for lacking substantial legal human rights protection.
| Characteristics | Values |
|---|---|
| Common law is made by the courts | |
| Common law must be applied and developed by courts so it doesn't breach the Human Rights Act | |
| All courts in the UK must interpret and give effect to the law in a way that respects human rights | |
| The UK's political system protects fundamental human rights through the Human Rights Act and other legislation, and the courts and Parliament | |
| The Equality Act 2010 prevents public authorities from discriminating on the basis of race, sex, disability and other grounds of equal treatment | |
| The Human Rights Act allows individuals to take a case to the European Court of Human Rights in Strasbourg if they fail to get a remedy before the UK courts | |
| Common law principles contain concepts intended to provide protection for children and people with disabilities | |
| Common law freedoms include freedom from slavery and trafficking in persons |
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What You'll Learn
Common law and the Human Rights Act
The UK's political system protects fundamental human rights through the Human Rights Act, other legislation, and the courts and Parliament. The Human Rights Act states that all UK courts must apply the law in a way that respects human rights as closely as possible. This means that courts must interpret and enforce the law in accordance with the Human Rights Act in all cases they handle, including those involving private individuals and public authorities.
In the UK, some laws are made by the courts, and this is known as common law. Courts must always apply and develop common law in a way that does not breach the Human Rights Act. While the UK government is not required to change the law to comply with the Human Rights Act, it usually does. For example, a law that prevented a deceased father's details from being entered on his child's birth certificate was changed after it was declared incompatible with the right to respect for family and private life under Article 8 of the Human Rights Act.
In addition to the Human Rights Act, common law and other statutes passed by Parliament also play a crucial role in protecting individual rights by imposing legal constraints on public authorities. For instance, the Equality Act 2010 prohibits public authorities from discriminating based on race, sex, disability, and other grounds of equal treatment. However, these extra sources of legal rights protection are considered supplementary to the Human Rights Act.
While the UK does not have a codified constitution, its courts have played a significant role in protecting human rights. The development of the European Union's equality law, for example, highlighted the gap between the UK's rhetoric and reality regarding its commitment to equality and non-discrimination. In response, British courts in the early 1990s began to identify a limited set of common law rights, such as the right to personal liberty, which encompasses freedom from slavery and trafficking.
Common law recognition of rights, however, generally lacks the provisions contained in human rights treaties, which outline obligations on governments to actively promote and protect human rights. Common law principles do contain concepts intended to safeguard children and people with disabilities, but in some instances, this has led to further breaches of human rights due to relevant statutory provisions and a lack of appropriate administrative and policy frameworks.
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Equality and non-discrimination
The UK's political system protects human rights through the Human Rights Act and other legislation, as well as the courts and Parliament. The Human Rights Act states that all UK courts must apply the law in a way that respects human rights as closely as possible. This means that courts must interpret and enforce the law in a way that aligns with the Human Rights Act, even in cases involving individuals or public authorities.
The UK's commitment to equality and non-discrimination has been questioned, particularly in relation to the state's positive obligations to protect vulnerable individuals and groups, such as children, persons with disabilities, refugees, migrants, and the homeless. The development of the EU's equality law, for example, highlighted a gap between the UK's rhetoric and reality regarding its commitment to non-discrimination.
The right to assembly is another area where equality and non-discrimination are important. While UK law recognises the right to peaceful assembly, it does not extend to private property. In the case of Appleby v UK, the Court of Human Rights held that there was no interference with the right to peaceful assembly when protestors were excluded from a private shopping mall.
Overall, while the UK has taken steps to promote equality and non-discrimination through legislation and the courts, there are still areas where the country's commitment to these principles has been questioned.
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The UK's democratic protection of human rights
The UK's protection of human rights is a complex issue, with a range of factors influencing the democratic protection of human rights in the country.
Firstly, the UK does not have a codified constitution that explicitly outlines citizens' rights, unlike many other countries. Instead, the UK's political system protects fundamental human rights through a combination of the Human Rights Act, other legislation, and the courts and Parliament. The Human Rights Act requires all courts in the UK to apply the law while respecting human rights and interpreting and giving effect to the law as closely as possible to the Act. This means that courts must ensure that their rulings do not breach individuals' human rights.
However, it is important to note that Parliament is responsible for making laws in the UK, and it is not bound to follow the Human Rights Act when creating new laws. This means that Parliament can, and sometimes does, create laws that go against or are incompatible with the Human Rights Act. In such cases, the government is not legally required to change the law to make it compatible with the Act, but it usually does so to protect human rights.
In addition to the Human Rights Act, common law, and other statutes passed by Parliament, also play a crucial role in protecting individual rights. Common law refers to laws made by the courts, and courts must apply and develop common law without breaching the Human Rights Act. This provides a level of protection for human rights, even when Parliament creates laws that are incompatible with the Act.
Furthermore, individuals who do not find a remedy in UK courts under the Human Rights Act can take their case to the European Court of Human Rights in Strasbourg. While judgments made by this court are not binding on UK public authorities or Parliament, there is a strong expectation that the UK will comply with them.
The UK's approach to human rights has evolved over time, influenced by international human rights movements and treaties. The Universal Declaration of Human Rights (UDHR), adopted by the United Nations in 1948, established basic civil, political, economic, social, and cultural rights that all human beings should enjoy. The UK's commitment to human rights has also been shaped by its membership in the European Union and its equality law.
However, there are criticisms of the UK's record on human rights, particularly in socio-economic rights and positive obligations to protect vulnerable individuals and groups. The UK's approach to human rights has been described as lacking substantial legal protection, and there is a growing disenchantment with the historic approach. Nonetheless, the UK's democratic system, with its emphasis on individual freedom and the rule of law, contributes to the protection of human rights in the country.
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Common law and socio-economic rights
Common law, along with other statutes passed by Parliament, plays a significant role in protecting human rights in the UK by imposing legal constraints on public authorities. While the UK does not have a codified constitution, its political system protects fundamental human rights through the Human Rights Act 1998 (HRA) and other legislation, as well as the courts and Parliament.
Socio-economic rights, in particular, are not well covered in the UK's human rights framework. International human rights law has a limited impact on UK law and policy in this area. However, the UK has ratified and is bound by international treaties such as the International Covenant on Economic, Social and Cultural Rights (ICESCR). The ICESCR establishes that individuals are entitled to certain socio-economic rights, including the right to social security, food, housing, labour rights, health, education, and participation in cultural life. These rights are on par with civil and political rights, such as freedom of expression and the right to a fair trial.
Public bodies across Great Britain and Northern Ireland, at both local and national levels, have a legal obligation to incorporate and implement economic and social rights into laws, policies, and practices. The Equality Act 2010 is another example of legislation that prevents public authorities from discriminating on various grounds, including race, sex, and disability.
The European Court of Human Rights in Strasbourg also plays a role in protecting human rights in the UK. Individuals who fail to obtain a remedy under the HRA in UK courts can take their case to the European Court of Human Rights. While judgments made by this court are not binding on UK public authorities or Parliament, there is a strong expectation that the UK will comply with them.
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Common law and the protection of vulnerable individuals
The UK's approach to protecting human rights is unique in that it does not have a codified constitution. Instead, it relies on the Human Rights Act, other legislation, and the courts and Parliament to safeguard these rights. Common law, which is made by the courts, plays a supporting role in protecting human rights by imposing legal constraints on public authorities.
While the UK is not bound by judgements made by the European Court of Human Rights, it is expected to comply with them. The Equality Act 2010, for example, prevents public authorities from discriminating based on race, sex, disability, and other grounds for equal treatment.
Common law principles contain concepts that aim to protect children and people with disabilities. For instance, in the context of a fair trial, a person with a disability may be found unfit to plead to criminal charges and face indefinite detention, potentially resulting in severe breaches of human rights.
Additionally, common law freedoms encompass freedom from slavery and trafficking in persons. The case of Somersett v. Stewart (1772) 98 ER 499 affirmed freedom from slavery as a fundamental common law freedom.
The UK's political system, through the Human Rights Act and other legislation, strives to protect the rights of vulnerable individuals and groups, including children, persons with disabilities, refugees, migrants, and the homeless. However, socio-economic rights are notably lacking in coverage, and international human rights laws have a limited impact on UK law and policy.
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Frequently asked questions
Common law offers protection to human rights in the UK by imposing legal constraints on public authorities. For example, the Equality Act 2010 prevents public authorities from discriminating on the basis of race, sex, disability, and other grounds of equal treatment. Additionally, the constitutional importance of privacy has been recognized since 1604, and common law acknowledges "the tort of invasion of privacy."
The right to freedom of peaceful assembly and freedom of association with others, including joining trade unions, is protected by common law in the UK. Another example is the right to privacy, which is constitutionally recognized and protected by common law.
The Human Rights Act (HRA) plays a crucial role in protecting human rights in the UK. All courts in the UK must interpret and apply the law while respecting human rights as outlined in the HRA. However, the HRA does not override parliamentary sovereignty, and parliament is not legally bound to follow it when making laws.
The UK is a signatory to the European Convention on Human Rights (ECHR), and common law engages with these obligations. While the ECHR is not directly enforceable in the UK, there is an expectation for the UK to comply with judgments made by the European Court of Human Rights in Strasbourg.
