What are human rights?
‘Human rights’ is the collective term for basic rights and freedoms afforded to all peoples. They apply irrespective of your nationality, place of birth or residence, or what you choose to believe.
You cannot be deprived of your human rights permanently, but some rights can be restricted temporarily. For example, if you break the law or in the interest of national security.
The development of human rights was founded on shared values such as dignity, fairness, equality, respect for one another, and individual autonomy.
Human rights in the UK are protected by the Human Rights Act, which incorporates the ECHR into UK law.
What is the effect of the Human Rights Act?
The HRA has 3 main objectives:
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making sure new UK laws are compatible with the ECHR - any new Acts of Parliament or secondary legislation (eg statutory instruments) must be compatible with ECHR rights, so far as it is possible to do so. Where possible, the courts will interpret the law in a way that is compatible
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seeking justice in UK courts - if your human rights have been violated, you can challenge the breach in the domestic courts, without having to appeal to the European Court of Human Rights in Strasbourg, France
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ensuring public bodies respect your rights - all public bodies (eg the courts, the police, local authorities, hospitals, and publicly funded schools) and all bodies that carry out a public function must respect and protect your human rights. The process of appealing a breach of the law (eg of human rights law) by a public body is known as ‘judicial review’
Types of rights: absolute, qualified, and limited
Some rights are unequivocal (ie they cannot be limited), while others can be restricted or limited in certain situations. The 3 types of rights are: absolute rights, qualified rights, and limited rights.
Absolute rights
Certain rights are ‘absolute’, meaning there are no circumstances in which these rights should be infringed upon by a public authority. Absolute rights include:
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Article 3 - no one shall be subjected to torture or to inhuman or degrading treatment or punishment
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Article 4(1) - no one shall be held in slavery or servitude
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Article 7 - no punishment without law
Qualified rights
Some rights are ‘qualified’, meaning they can be restricted in certain circumstances and within limits. In these situations, the rights of the individual must be balanced against the interests of the wider community. Examples of qualified rights include:
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Article 8 - respect for your private and family life
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Article 9 - freedom of thought, conscience, and religion
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Article 10 - freedom of expression
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Article 12 - the right to marry
So, for example, your right to marry under Article 12 is a qualified right. In England and Wales, you’re not allowed to marry anyone under 18; anyone already married or in a civil partnership; anyone closely related to you (eg your parents, siblings or half-siblings, or any other blood relative closer than first cousins); or anyone who cannot understand and therefore consent to marriage (Scotland has similar rules). Another example is that your freedom of expression under Article 10 may be checked, for example, if you are encouraging racial hatred.
Limited rights
Some rights can be ‘limited’ if there is a fair and proportionate reason for doing so. Limited rights include:
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Article 2 - the right to life
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Article 5 - the right to liberty and security
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Article 6 - the right not to be discriminated against
Many people believe the right to life to be absolute, but public authorities can in some limited circumstances restrict your right to life in order to protect someone from unlawful violence, prevent someone escaping detention, or to stop a riot. The right to liberty is limited when a person is arrested or detained.
Which organisations must abide by the Human Rights Act?
Whether you can make a legal claim if your human rights have been unlawfully breached depends on whether the offender is a public organisation (or body carrying out a public function) or a private organisation.
Public organisations
Public organisations, or private organisations carrying out public functions, are bound by the HRA to not infringe upon your human rights. Examples of public bodies include:
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government departments
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courts and tribunals
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local authorities
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police, prison, and immigration officers
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publicly funded schools
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ombudsmen
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public prosecutors
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NHS trusts and hospitals
The courts must decide whether a body is carrying out a public function as there is no solid legal definition. When considering whether an organisation is carrying out a public function, the courts will look at whether the body is:
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publicly funded
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supervised by a state regulatory body
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exercising powers given to it by the law
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taking the place of central or local government
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providing a public service
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acting in the public interest
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carrying out coercive powers devolved from the state
Examples of organisations that carry out a public function could be a privatised utility provider (such as British Gas), a housing association with social landlord functions, or a private care home providing care on behalf of a local authority.
Private organisations
Private organisations only have to protect individuals’ human rights when carrying out a public function. Otherwise, they are generally under no obligation to abide by the HRA.
However, when hearing cases the courts must interpret all law in a manner compatible with the HRA, insofar as it is possible to do so. In this way, private organisations are restricted from acting in ways inconsistent with the HRA. This principle also applies to private individuals. In practice, this means that if a legal case is brought against someone (either an organisation or an individual) on whatever legal grounds, the courts may also consider how human rights law affects the case against this organisation or person.
Important human rights considerations for businesses
The most important human rights in the HRA for businesses include:
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Article 4 - prohibition of slavery and forced labour
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Article 5 - right to a fair trial
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Article 8 - right to respect for private and family life
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Article 9 - freedom of thought, conscience, and religion
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Article 10 - freedom of expression
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Article 11 - freedom of assembly and association
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Article 14 - prohibition of discrimination
Some of these are more obvious in their application to businesses, such as Article 4 (prohibition of slavery and forced labour). For example, employers must pay their workers the correct minimum wage or face criminal penalties and certain businesses must publish annual Modern slavery statements.
Article 5 (the right to a fair trial) might be less obvious in its application, but employers must respect their workers’ rights on matters such as unfair dismissal and during employment tribunals. All employees are entitled to a fair disciplinary hearing in a timely manner, with an independent process available should they wish to appeal the first-instance decision.
Privacy (Article 8) is another important right that businesses must respect. Whether it be their employees’ right to privacy or their customers’, businesses must handle personal data (ie information about an individual from which they could be identified) in a confidential and sensitive manner.
More personal information, such as health records, is considered ‘special category’ personal data, which is afforded greater protection under the law. It is important that businesses do not collect this special category data without additional protection criteria being met.
Other things covered by the right to privacy include how someone identifies, how they choose to dress, and their sexuality.
Freedoms of thought, expression, and association given in Articles 9-11 generally prohibit businesses from making hiring and firing decisions based on their employees’ political opinions, religion, or similar beliefs. Particularly important is the right to join a trade union; businesses cannot prevent or punish their employees for being members of a labour union. Under Article 14, everyone (including employees and customers) has the right not to be discriminated against when enjoying other rights and freedoms in the HRA.
As mentioned above, some of these rights are limited, and so businesses can fire employees who encourage racial hatred, for example, or otherwise infringe upon the rights of their colleagues.
Ask a lawyer if you have any questions about human rights and how they apply to your or your business.
