Joint Committee On Human Rights

Joint Committee On Human Rights Written Evidence

Annex

HUMAN RIGHTS: A FRAMEWORK FOR RESOLVING DISPUTES IN THE COMMUNITY?

This paper has been prepared as background briefing to discussion by CEHR Task Force members at its meetings Supporting the Public Sector and Promoting Human Rights (26.02.04) and Supporting Communities (02.03.04).

The information below is based principally on the standards and values of the European Convention on Human Rights (ECHR), and case law enforcing it, both in the UK's own courts, under the Human Rights Act 1998, and the European Court of Human Rights in Strasbourg (ECtHR). It also draws principles from other human rights instruments commonly cited before the ECtHR and domestic courts, which have been ratified (although not incorporated) by the UK.

1. Human rights: individual and group rights

In the UK human rights are often still thought of as rights that individuals hold against the state. Liberty of person and freedom of speech, for example, are usually understood as giving protection against unlawful state interference—arbitrary detention and press censorship in the two cases mentioned.

This is an important aspect of human rights. But human rights thinking (in contrast to UK's previous tradition of civil liberties) goes further than this in recognising two additional dimensions:

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2. Conflicting rights; and state obligations to protect rights

As a result of the above, a human rights perspective identifies the rights issues arising for all parties involved in a given situation—whether these concern state violations, or stem from other individuals' actions—as the first step in finding a just resolution to conflict. On hate speech, for example, a human rights view recognizes both the speaker's right against state curtailment of her freedom of expression, and the victim's rights against degrading treatment, to privacy and against discrimination.

Also flowing from this, human rights principles oblige the state to act to prevent human rights breaches by third parties—in addition to the state's basic duty itself to respect human rights in operations. So, for example, the state's obligation to protect human rights may require governments to introduce and effectively implement legislation to prevent discrimination—which can extend to introducing affirmative action programmes taking effect in the sphere of private as well as public employment. [105]

3. Finding the rights balance

In the last 50 years, a framework of human rights principles has been developed to provide a structured process for adjudicating situations where rights appear to conflict—as in the example of hate speech above. These are intended to guarantee a just outcome that gives due respect to the rights both of the individual and the community at large.

These principles build on a basic tenet of all human rights laws, that most individual rights can be restricted "to protect the rights of others", as well as to safeguard important public interests, such as national security or public health—so long as the restriction is "proportionate" to the objective sought.

To qualify as "proportionate", measures that restricts human rights must pass a number of tests. For example, it must not go beyond what is strictly required to achieve the public aim it seeks, and it must be demonstrably effective to achieve that aim in practice. [106]It must also cause the least interference with human rights amongst the alternative policies or actions realistically available. [107]

So, for example, in the field of child protection, the measure of removing a child from her parent's care, or regulating the conditions of care, will inevitably interfere with both the parents' and the child's right to family life. However, human rights principles permit the state to take proportionate action TO tect the child's welfare and human rights (the right to life and right against inhuman treatment may be at stake)—and provides a guiding method for doing so.

4. Clashes of rights: human rights solutions

The following examples illustrate how these principles have operated in practice in real situations in the UK and Europe more widely. They demonstrate that where there is a tension between individual rights, on one hand, and group rights or equalities considerations, on the other, human rights offers a toolkit for balancing the rights and perspectives of diverse communities fairly, and in a way that promotes mutual respect, builds inter-community understanding, and preserves social harmony.

4.1 Persons with disabilities vs healthcare professionals

In response to health and safety requirements, some local authorities in the UK have imposed blanket prohibitions on healthcare staff undertaking manual lifting of severely disabled people. In X & Y v East Sussex County Council[108], the Human Rights Act was used to challenge such a policy on behalf of two severely disabled women. It was argued for them that using mechanical lifts in all situations—regardless of the impact this had on their rights against degrading treatment and to personal integrity—breached their human rights.

The Disability Rights Commission intervened to support this argument, and used human rights principles to assert that the local authority's policy and practice on lifting should not place any unreasonable restriction on the clients' rights to autonomy, privacy or dignity. A fair balance was required to be struck, and in turn this required balancing of clients' and carer's rights with respect to the factual circumstances of each and every lift required in the daily care routine. On the other hand, Royal College of Nursing guidance had advised that "manual lifting of patients is to be eliminated in all but exceptional or life-threatening situations".

The High Court agreed with the DRC. This was not, it found, a situation where the disabled person's rights "trumped" those of carers, or vice versa. Rather, a balancing exercise was required—between a disabled person's rights to treatment respecting personal dignity and not to be deprived of valuable activities, and secondly, carers' rights (protected by health and safety legislation) not to be exposed to undue risk of physical harm. The "conflict between the competing interests had to be resolved" in relation to each lift position and, in determining the correct balance, the local authority was required to give "enhanced weight" to the human rights of the disabled persons. If the rights balance in a particular scenario came down in favour of manual handling, then this must be undertaken, though with the caveat that the employer had to "take all appropriate steps to minimise the risks" to carers.

4.2 Free expression: hate speech

On a human rights analysis, the right to free expression will not protect the advocacy of racist sentiment as such activity is clearly aimed at destruction of the rights of others and is discriminatory. The ICCPR bolsters this protection by obliging states to forbid by law "advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence". The UN Human Rights Committee[109] has stated that such limits are entirely compatible with free expression and derive from the "special duties and responsibilities" on which the exercise of free expression is contingent. [110]

Applying these principles, the ECtHR has rejected claims of breach of freedom of expression by members of fascist groups convicted by national authorities for disseminating racist materials. [111]Convictions and workplace disciplinary action for Holocaust denial have similarly been upheld by the UN Human Rights Committee, with reference to the right to live free from fear. [112]There is no reason why similar principles should not apply in relation to other forms of discriminatory and abusive speech such as homophobic material.

4.3 Respect for religious values vs individual rights and pluralism

Also deriving from the individual's right to free thought, conscience and belief is the state's obligation to ensure peaceful enjoyment of that right from hostile attacks by others—at the same time exercising due respect for free expression.

In one case Austrian authorities had seized a film on grounds it was likely to cause indignation and offence to religious feeling among the local Catholic population due to the "lampooning" character of its content. [113]The body responsible for the screening alleged this breached its free expression.

The European Court first found that "Those who choose to exercise the freedom to manifest their religion, irrespective of whether they do so as members of a religious majority or a minority . . . must tolerate and accept denial by others of . . . doctrines hostile to their faith". Nonetheless, recognising the interdependence of individuals' and groups enjoyment of human rights in a real community, the Court also found that respect for the religious feelings of believers could be violated by deliberately "provocative portrayals of objects of religious veneration", if these constituted a "malicious violation of the spirit of tolerance, which must also be a feature of democratic society". Consequently the film's confiscation had not intruded unjustifiably on free expression.

4.4 Minority vs majority: language rights

In certain rural areas Belgian law permitted school education only in Flemish, and not in the native French of the minority population. [114]Further legal measures prevented children from those areas attending French language schools in adjacent French-speaking zones. French-speaking children were consequently forced to move some distance beyond their home areas to receive appropriate schooling or go without.

The relevant Belgian legislation was challenged as a discriminatory breach of the right to education. A long history of strife between French- and Dutch-speaking communities in Belgium provided the background to the legislation, which the government claimed was motivated precisely by the objective of "refusing to discriminate" at the national level, and the avoidance of bitter political confrontation between the two communities.

Assessing the discrimination question, it was first pointed out that not every distinction made by law between persons is forbidden by human rights. This would lead to absurd results; additionally, given the important role and legitimacy of state interventions to promote equality, the ECtHR recognized that "certain legal inequalities tend only to correct factual inequalities".

It was therefore found that the human rights test is whether a particular differentiation has an objective and reasonable justification. In turn this must be determined with regard to the aim and effect of relevant measures, and "having regard to the principles which normally prevail in democratic societies": human rights "cannot disregard those legal and factual features which characterise the life of the society in the state" in question. On this basis the Court found the overarching project of promoting equality and harmony between language communities legitimate, but rejected those of the provisions challenged which had the effect of treating children unequally on ground of language in terms of access to schools of their choice.

4.5 Majority moral views vs pluralism

Individuals whose behaviour is identified as deviating from majority moral norms have always been the target of persecution and consequent human rights violations. But majoritarianism in some form or degree is almost universally accepted as a principle of democracy, and majority governments are clearly mandated to promote and protect the prevailing moral values of the electorate. What solution does human rights thinking advance where these values conflict with individual claims to human rights?

A human rights approach still seeks to rely on and apply the balancing framework of proportionality where this situation presents itself. One such case concerned clinics in Ireland that provided information and advice to women about abortion services overseas. [115]The clinics' activities had been banned "in perpetuity"—in alleged breach of the clinics' right to impart, and women's right to receive, relevant information—by national courts on the basis of both criminal law, and a constitutional protection of the right to life of the unborn which had been introduced following a national referendum.

Here it was accepted that national prohibition of abortion was "based on profound moral values" shared by the democratic majority, so that limiting the clinics' right to free expression pursued a legitimate human rights aim. However, while national authorities have a wide "margin of appreciation" in moral matters, states do not have an unfettered discretion—even in areas where there is no European consensus. Free expression also applies to information that may offend, shock or disturb the state or any sector of the population: "such are the demands of that pluralism tolerance and broadmindedness without which there is no `democratic society'". Accounting the accessibility of relevant information, protection of women's health, and lack of efficacy of the measures deployed in preventing abortions, the restriction was found disproportionate.

Government claims that abridgment of rights on grounds of public morals should as an exception be relieved of the requirement of meeting a "pressing social need", have been strongly rejected, for example in the context of legislation criminalizing homosexual acts between adults. [116]To the contrary, a real, pressing social need must be evidenced in every case, and shock or offence to members of the public cannot on their own warrant criminal sanctions, where no special need for individuals to be protected from a particular activity can be demonstrated.

4.6 Equal treatment vs redressing past inequalities

All human rights laws sanction specific preferential action where this may be required to correct pre-existing disparities in human rights within national populations. At the same time, human rights principles set parameters for balancing the impact such measures may be permitted to have on others—for example, members of other disadvantaged groups.

Whether such impact is justified is measured against the same test of proportionality outlined above in each individual case. A human rights approach is therefore able to "factor in" wider social patterns of difference in the enjoyment of human rights when assessing whether treatment of a particular individual or member of a social group is fair or not. In this way it can also provide justification to equality claims that an "anti-discrimination" perspective alone may lack.

In Re Parsons[117] an applicant to the Northern Ireland Police Service was rejected due to a legislative requirement on the Chief Constable to appoint equal numbers of Catholics and Protestants: given his ranking overall, he would have been admitted but for the equality requirement. He therefore argued he had been unlawfully discriminated against, on human rights grounds. His claim failed, because it was found that the difference in treatment he was subjected to pursued a legitimate aim—that of establishing a representative police force—and was proportionate to it.

Similarly, Parliament's Joint Committee on Human Rights recently approved the Sex Discrimination (Election Candidates) Bill as justified in human rights terms. This bill (now legislation) created an exemption to SDA 1975 allowing political parties to undertake affirmative action on basis of gender. [118]The Committee noted that "it may be impossible to offer equal opportunities to people of different sexes without taking action to neutralize the effects of socially engrained, historical patterns of unequal treatment". This contrasts with the Industrial Tribunal's previous finding that similar positive action undertaken by the Labour Party was unfairly discriminatory and could not therefore be justified under SDA. [119]

Human rights principles may also require governments to take positive steps to achieve greater equality. In just one such case, the lack of measures in Belgian law to safeguard the integration of illegitimate children, historically discriminated against in a variety of ways, breached their right to respect for family life and obliged the government to undertake legislative reform. [120]

6. Conclusion

An integrated human rights and equality perspective provides a universal justification for measures to promote equality. This may be summarised as equality of respect and dignity for all.

Without this universal basis, and in the context of an expanding and still diversifying equality agenda, government measures promoting equality may sometimes appear arbitrary to people outside protected groups.

Applying a combined view of human rights and equality can, on the other hand, help to make it clearer that:

(i) the same protections and entitlements apply to everyone, regardless of her group status (subject to the proviso concerning special measures to address past injustices: see above);

(ii) achieving this universal aim is one of the essential objectives of equalities legislation; and

(iii) the path towards achieving this aim will be one that respects the fundamental human rights of all.

By setting down a transparent framework to balance competing rights fairly, a human rights perspective ought therefore to build public confidence in, and gradually generate more widespread support for, measures to promote equality along group contours in society.