Human Rights and State - Research Paper Example

Human Rights and The has always been more powerful than the individual. The defends individual liberty through law. This is expressed in the basic rights of citizens including their right to property. The state in consideration for the orderly conduct of its citizens provides them with freedom from acts of aggression from other societies. It also gives the citizens the right to participate in elections and become part of the state itself. However, the state is a powerful entity which may threaten individual liberty. The question is, where does the state cross the limits of protecting the interests of public at large on the one hand the individual liberties of a certain number of persons who are seen as threats to those interests? It has always been that no one in a state is bigger than the law. In fact, in the famous words of Thomas Fuller, “Be you ever so high, the law is above you”. (Cited Steyn, 2005). Since antiquity, law has been applied to the state itself, as symbolized by the King. The public good is supposed to be the best law. Laws apply to state in order to restrain it. This form of government is called Constitutional government. In an ideal constitutional government, laws are made by the legislature elected by the people, the administration is looked after by the government (the King in historic times) and the judiciary applies law to determine the issues between parties. Laws are public instruments - they are written in statute books. They are made so as to regulate the powers exercised by the state over individuals. However, there are inevitably areas of law in which the public good is considered to be more important than the individual liberty. Such may be the case where the activities of an individual are harmful to the society at large. In such circumstances, the state may be justified in depriving the individual of his liberties. An example of this may be a psychiatrically disturbed person roaming the streets armed with a deadly weapon. He may not see reason, which may necessitate his arrest and detention. If this person is doing this for a political reason, then of course a different yardstick would be applied. Where the government of a state declares an emergency and civil rights of its citizens are suspended, there is bound to be a huge outcry – what was the necessity of adopting such a drastic measure? There are bound to be challenges to the government’s authority to do so, there will be The object of this essay is to examine the conflict between the individual and the state with regard to human rights. The essay will limit itself to the prevalent situation in the United Kingdom. The scenario regarding public security, law and order has changed dramatically after the so called 9/11 attacks on US mainland. At present, the Human Rights Act 1998, the Terrorism Act 2000, The Anti-terrorism, Security and Crime Act 2001 and Prevention of Terrorism Act adopted in 2005 are in force specifically to meet the challenges posed by the terrorist threat to the United Kingdom. The Human Rights Act, 1998 came in to force on 2 October, 2000 in the United Kingdom. By the coming in to force of this act, United Kingdom adopted many provisions of the European Commission on Human Rights. According to Lord Steyn (2005), it was a landmark in the development of United Kingdom becoming a ‘truly constitutional state’. In this authoritative lecture, Lord Steyn has provided his view of the implications of the coming in to force of the Human Rights Act, 1998. The purpose of the 1998 Act, ..... was to ensure that people whose rights under the European Convention on Human Rights had been violated would have an effective domestic remedy in the courts of this country, as required by article 13 of the Convention, and would not have to seek redress in the European Court of Human Rights in Strasbourg. [2007] 1 AC 100 The Human Rights Act formally recognises and adopts many provisions of the European Union law by this enactment. It has by the virtue of the said act, adopted particularly the provisions of the European Commission on Human Rights. In fact the preamble of the Act makes the point clear, reading as follows “an Act to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights” (The Human Rights Act 1998) There are many areas in which the concept of human rights operates. The European Union Law encompasses among its citizens’ rights list provisions relating to health and social welfare, education and free movement f goods and services and other diverse areas. Unless otherwise provided in any other law for the time being in force, Human Rights Act, 1998 makes it mandatory on the part of all public authorities to act according to the European Convention on Human Rights i.e. not to violate its provisions. According to the provisions contained in the Act, if any enactment of the United Kingdom is not compatible with European Union legislation, the courts in England have to declare incompatibility with the European law. The person aggrieved will still have a right to approach the European Court of Justice according to the Strasbourg Convention. Related Legislation The most important and founding piece of legislation in the area of human rights was the Universal Declaration of Human Rights. On December 10, 1948 the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human Rights. The concept of human rights has since then developed to encompass many areas which were not originally considered to be within the realm of human rights. The right to know, the right to privacy, the right to education and family rights etc have been elaborated and included in the legislation. The Universal Declaration of Human Rights also provides that everybody shall be equal before law, and that nobody should be discriminated on account of national or social origin Further “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.” (UNDHR, 1948). After this, and as a consequence, International Covenant on Civil and Political Rights, was adopted in 1966. It defends the right to life and stipulates that no individual can be subjected to torture, enslavement, forced labour and arbitrary detention or be restricted from such freedoms as movement, expression and association. (ICCPR, 1966). In 1950, the European (then known as Council of Europe) adopted the Convention now known as the European Convention on Human Rights. By that Convention, The Charter of Fundamental Rights of the European Union provides for human rights under six headings; dignity, freedoms, equality, solidarity, citizens rights and justice. (CFREU, 1999). The United Kingdom also enacted the Human Rights Act in 1998, as stated above. However, in the changing scenario with more and more acts of terrorism threatening internal security of the country it became necessary to enact the Anti Terrorism and Crime Act, 2001. The provision of this and other local acts sometimes contradict each other, and the courts have had to consider relevant facts and interpret the law applicable in the given situation. Some important cases The English Courts of law have ruled in many cases in favour of the individual and against the state. In A v Home Secretary and Ors, [2005] UKHL 71 the main question, according to Lord Bingham was, whether the Special Immigration Appellate Commission could “receive evidence which has or may have been procured by torture inflicted, in order to obtain evidence, by officials of a foreign state without the complicity of the British authorities?” (para 1) It was held confirming the Court of appeal’s verdict that not do so. Relevant provisions of law Re Belmarsh  In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. (S. 15 ECHR) The Secretary of State is empowered under S. 21 of the Anti Terrorism, Security and Crimes Act to issue certificate to the effect that a particular individual is a suspected international terrorist. S 22 of that Act provides that the action contemplated under sub section 2 may be taken against such a person. S 23 of the Act provides that such a person may be detained by authorities even though by reason of a point of law which relates to an international obligation or by any other practical consideration. The Act makes provision in section 24 for the grant of bail by the Special Immigration Appeals Commission ("SIAC"). Under section 25 a certified suspected international terrorist may appeal to SIAC against the certification. Section 26 provides for periodic reviews of certification by SIAC. In the most important case regarding the conflict between individual liberty and the state’s prerogative to secure public good by limiting it or depriving the citizen from such liberty, Belmarsh , the House of Lords held that “the detention of foreigners on the ground that they were involved in terrorism was a breach of the European Convention on Human Rights” Steyn, 2005. In the said case, the appellants were foreign (non-UK) nationals. No one was involved in a criminal trial. They challenged the lawfulness of their detention. On the ground that it was inconsistent with the provisions of the Human Rights Act 1998 which had adopted the European Commission on Human Rights in its entirety. They contended that the United Kingdom was not legally entitled to derogate from those obligations as the derogation would have been inconsistent with the European Convention. It was the case of the appellants that the authorities were not justified in detaining them as the statutory provisions under which they have been detained were incompatible with the Convention. In response to the terrorist attacks on the US, the United Kingdom Government reacted to the events of 11 September in two ways. Firstly, the Anti-terrorism, Crime and Security Act 2001 was enacted. Secondly, the Human Rights Act 1998 (Designated Derogation) Order 2001 (SI 2001/3644) ("the Derogation Order") was passed. Prior to this time, the authorities could detain a foreign national only till such time as would be necessary in order to make arrangement for his deportation. The grounds of appeal and the issues before the House of Lords were mainly, whether there was a public emergency so as to justify the derogation, the proportionality of the action taken by the authorities, and the discrimination suffered by the appellants on the ground that they were not UK nationals. The appellants had questioned the first issue of public emergency, on the grounds that there was no imminent danger to the British nation, that if there was danger, it was not temporary; and that other countries in the European Union had not derogated from their duties under the European Convention. Amongst other reasons, Lord Bingham rejected these contentions as he held that the decision on public emergency is to be taken by the government rather than courts of law. In R (Begum) v Governors of Denbigh High School [2006] UKHL 15, the question before the House of Lords was whether the dress on which a student was insistent would be allowed in her school. The facts were that after a period of years in which the student wore a Pakistani Shalwar Kameez, the respondent had demanded that she should be allowed to wear a jilbab, a more conservative form of dress. It was held that the student did have a right to wear a particular dress, but it would not be enforced in the school as other students would then be forced into wearing that sort of dress, which would then abrogate their rights. Bibliography The Human Rights Act, 1998 The Terrorist Act, 2000 The Antiterrorist, Security and Crimes Act, 2001 The Prevention of Terrorism Act 2005 Universal Declaration of Human Rights, 1948 Human Rights Act 1998 (Designated Derogation) Order 2001 (SI 2001/3644) http://www.un.org/en/documents/udhr/ accessed on April 4th, 2010 International Convention on Civil and Political Rights, 1966 http://www.un.org/millennium/law/iv-4.htm accessed on April 4th, 2010 The Charter of Fundamental Rights of the European Union http://europa.eu/legislation_summaries/human_rights/fundamental_rights_within_european_union/l33501_en.htm YL v Birmingham City Council and others (Secretary of State for Constitutional Affairs intervening) [2007] UKHL 27 per Lady Hale Para 54 R (SB) v Governors of Denbigh High School [2007] 1 AC 100 per Lord Bingham para 29 A v Secretary of State for the Home Department [2004] UKHL 56 R (Begum) v Governors of Denbigh High School [2006] UKHL 15 Read More