The Cultural Politics of Human Rights: Comparing the US and UK

It implicitly supported what became the writ of habeas corpus , safeguarding individual freedom against unlawful imprisonment with right to appeal. The idea of freely debating rights to political representation took form during the Putney Debates of Beginning in the late 17th century, philosophers began to think of rights not as privileges to be granted by the government or the law, but as a fundamental part of what it means to be a person.

He articulated that every person is created equal and free but, in return for the advantages of living in an organised society, a person may need to give up some of this freedom. The Bill of Rights , enacted in the Kingdom of England which at the time included Wales , reinforced the Petition of Right and the Habaes Corpus Act by codifying certain rights and liberties. It established the prohibition against cruel and unusual punishment and limited the power of the monarch. In the place of the concept of popular sovereignty found in other democracies, the United Kingdom evolved a concept of parliamentary sovereignty under which the liberties of the individual are implications drawn from two principles.

During the 20th century, a belief arose that some extra protection of human rights above and beyond parliamentary scrutiny was necessary. The UK played an important role in the drafting of the Convention, [28] with figures such as Arthur Goodhart , John Foster and the UK-based Hersch Lauterpacht providing the impetus for the creation of the Council of Europe in as a means of guarding against the rise of new dictatorships and to provide the citizens of Soviet -occupied countries with a beacon of hope.

The initiative in producing a legally binding human rights agreement had already been taken by the International Council of the European Movement , an organisation whose cause had been championed by Winston Churchill and Harold Macmillan , and whose international juridical section counting Lauterpacht and Maxwell Fyfe amongst its members had produced a draft convention.

The Committee agreed and the text of what was to become the European Convention of Human Rights was in the main drafted by Sir Oscar Dowson, a retired senior legal adviser to the Home Office. There was reluctant support for the Convention back in the UK where Attlee 's Labour government were in power. The UK became the first state to deposit its instrument of ratification of the Convention on 8 March , [35] with the Convention taking effect on 3 September after the tenth ratification was deposited.

Two aspects of the Convention gave the United Kingdom's representatives to the Council of Europe cause for concern: The Conservative government elected in ratified the First Protocol to the ECHR in relating to the rights to property, education and free elections, [41] but resisted the right of petition on the grounds that the common law would come under scrutiny by an international court.

As had been the case for ratification in , the Labour government concluded in that there was little to be lost from giving in to the pressure to recognise the Court and the right of petition. The first public call for the incorporation of the Convention into national law was made in by Anthony Lester who published a pamphlet entitled Democracy and Individual Rights. By the momentum for incorporation had grown, garnering support from organisations such as Charter88 , Liberty and the Institute for Public Policy Research - the latter two having published proposals for a British Bill of Rights incorporating the rights.

Following the election of John Smith as Labour Party leader in , Labour policy towards the Convention - which had been against it before and during the General Election [35] - began to change in favour of incorporation. In November Lord Lester introduced a bill in the Lords which was based on the New Zealand Bill of Rights which would give the Convention a similar status in UK law as that accorded to European Community law by allowing courts to disapply future and existing Acts of Parliament which were incompatible with it, imposing a duty on public authorities to comply and making provision for effective remedies including damages for breaches.

The election of Labour in May led to the publication of a white paper on the bill - "Rights Brought Home: The Human Rights Bill".

The second reading in the House of Commons took place on 16 February where the bill was introduced by Jack Straw who stated that it was "the first major Bill on human rights for more than years". The bill successfully negotiated the Commons and the Lords and entered into force on 2 October as the Human Rights Act The Act seeks to give direct effect to the European Convention on Human Rights in domestic law by enabling claimants to bring an action in national courts instead of having to take their case before the European Court of Human Rights, as had previously been the case.

Section 3 of the Act requires primary and secondary legislation to be given effect in a way which is compatible with the Convention insofar as this is possible. Since its entry into force, the Human Rights Act has been the focus of intense criticism. The Act has been criticised by judges [ who? After Learco Chindamo , an Italian national convicted of the murder of a headteacher , Philip Lawrence , could not be deported to Italy after his release from prison in , then-Conservative opposition leader David Cameron called for the repeal of the Act and its replacement by a "British Bill of Rights".

Following the general election , the Conservative — Liberal Democrat coalition agreement provided for the establishment of a Commission to investigate the creation of a Bill of Rights. The nine-member Commission reported back in December that it had been unable to reach a consensus, with Lord Faulks and Jonathan Fisher , the two Conservative members, in favour of withdrawal from the Convention, while Philippe Sands , a Liberal Democrat adviser, and Baroness Kennedy , a Labour peer, opposed the introduction of a bill on the basis that it could be used to remove the United Kingdom from the European Court of Human Rights.

In a speech at the Conservative Party conference, Home Secretary Theresa May said the Conservative Party would, if re-elected at the election , withdraw from the Court and repeal the Human Rights Act if necessary to "fix" Britain's human rights laws. Human rights in Scotland are given legal effect through the Scotland Act Section 57 2 of the Act states: The common law ensures the protection of the right to life and that no person is deprived of life intentionally. The law also attaches importance to the preservation of life: There is also an obligation on the state to prevent destitution and neglect by providing relief to persons who may otherwise starve to death.

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The common law required punishment for "erroneous opinions concerning rites or modes of worship" to be provided for in legislation before it could be applied. Unlike the Church of Scotland and Church in Wales , the Church of England is the established church in England and enjoys certain privileges and rights in law. The Military Service Act and the National Service Armed Forces Act both provided for the possibility of exemption from military service on the basis of conscientious objection , [] although the House of Lords has held that there would be no breach of human rights if such a possibility was not provided for.

Regarded as one of the most important human rights, [] the courts have stated that there is no difference between the protection offered by the common law, and that guaranteed by the European Convention on Human Rights. The right of freedom of expression can be restricted where justified in the public interest , as is the case with the law of defamation , the offence of contempt of court , the law of obscenity and indecency , the regulation of mass media and protection of national security.

The right to free assembly is considered an aspect of the right to freedom of expression. The exercise of the right to free assembly is restricted by the common law as well as legislation. As with the right of freedom of assembly, there has not traditionally been positive protection of the right of freedom of association.

The right of freedom of association can be restricted on grounds of public order and national security; the Public Order Act prohibits the control or management of quasi-military associations and the Terrorism Act makes it an offence to be a member of a proscribed organisation. There is no general right to privacy in English law. Ltd where a magazine was successfully sued for publishing unauthorised photographs of a celebrity wedding. The Data Protection Act protects certain personal data which must be processed in accordance with a number of principles and gives persons a right of access to data which concerns them.

The right to freedom from interference with personal property is a well-recognised principle reflected in the maxim " an Englishman's home is his castle. The right to respect for the home relates only to an individual's existing home and there is no right to acquire a home. There is no general right to marry. The right to respect for family life, for which there is no general right at common law, [] is qualified by the broad principle that the welfare of the child is paramount and parental rights must take second place. Local authorities have a duty to act in a way to facilitate the right to family life, for example in providing travel arrangements for the elderly under the Health Services and Public Health Act The enactment of the National Minimum Wage Act installed a minimum wage and the Social Security Contributions and Benefits Act provides access to social security benefits.

The common law recognises that every person's body is "inviolate". The Criminal Justice Act prohibits torture carried out by public officials in the performance of their duties and evidence obtained by torture is excluded by the common law. The Police and Criminal Evidence Act allows police to carry out "intimate searches" of suspects in custody without the person's consent.

Protection against the arbitrary deprivation of property was recognised in the Magna Carta and is of key importance in the common law. In civil cases, a judge may grant an Anton Piller order authorising the search of premises and seizure of evidence without prior warning. Slavery was abolished throughout much of the British Empire by the Slavery Abolition Act but as early as the common law had recognised that as soon as a slave came to England , he became free. The courts have been reluctant to force individuals to work and have declined to enforce contracts of service.

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The Supreme Court of the United Kingdom considered the forced labour prohibition in Caitlin Reilly and Jamieson Wilson v Secretary of State for Work and Pensions , where it ruled that the Department for Work and Pensions ' workfare policy under which the unemployed work in return for their benefit payments were not forced labour but were nevertheless legally flawed. As provided for in the Magna Carta , "no freeman shall be taken, imprisoned [ The police also have stop and search powers which they can use if they have reasonable grounds to believe that they will find stolen or prohibited articles or controlled drugs.

Certain other categories of person may also be detained, such as persons in need of care and attention under the National Assistance Act , children in the care of a local authority in secure accommodation , those suffering from infectious diseases under the Public Health Act of and those detained by the British Armed Forces abroad. The courts have powers to sentence offenders and deprive them of their liberty, as well as detain mental patients under the provisions of the Mental Health Act Although the common law provides no explicit statement of rights in a legal process, a number of principles combine to guarantee an individual a certain level of protection by law.

Certain specific rights apply in criminal cases. Courts have jurisdiction to prevent abuses of process if it would be unfair to try a defendant or a fair trial would not be possible. The common law has not traditionally provided effective protection against discrimination , refusing to find that slavery in the colonies was contrary to public policy and not interpreting the word "person" to include women. Much of this legislation was consolidated into the Equality Act , the bulk of which entered into force in October , [] which also introduces an "equality duty" requiring public bodies to have due regard to the need to eliminate discrimination, to advance equality of opportunity and to foster good relations between people.

The Representation of the People Acts and confer the franchise on British subjects and citizens of the Commonwealth and Ireland who are resident in the UK.

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The Political Parties, Elections and Referendums Act deals with the registration of political parties , while electoral boundaries are determined by four Boundary Committees established under the Parliamentary Constituencies Act Fundamental rights form an integral part of European Union law. The United Kingdom sought to obtain a partial opt-out from the application of the Charter with the addition of Protocol 30 which affirms that the European Court of Justice does not have the jurisdiction to state a breach of the Charter by national laws, regulations or administrative provisions, practices or action, and that nothing in Title IV of the Charter concerning employment rights creates " justiciable rights " applicable to the United Kingdom unless those rights exist already in its law.

Other rights are conferred on UK nationals as citizens of the European Union , notably the right not to be discriminated against on grounds of nationality in an area within the scope of European Union law, the right to move and reside within the EU, the right to vote and stand for election in European and municipal elections, the right to diplomatic protection, the right to petition the European Parliament and the right to apply to the European Ombudsman. The United Kingdom is party to a number of international treaties and agreements which guarantee fundamental human rights and freedoms.

However, as the UK is a dualist state, treaties and agreements ratified by the government have no effect until and unless incorporated into domestic law. In Northern Ireland, the government curtailed the civil liberties of all those, disproportionately from the Catholic nationalist minority as the UK government commissioned Stevens Inquiries concluded; "This included examination and analysis of RUC records to determine whether both sides of the community were dealt with in equal measure.

During Operation Demetrius , for instance, a total of 1, people were interned without trial, [] of whom only were loyalists , and no loyalists were arrested until , 2 years after the introduction of internment.

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The European Court of Human Rights initially ruled that torture had been used, but on appeal amended the ruling to state that the techniques used, including sleep deprivation , hooding , stress postures, subjection to " white noise " and deprivation of food and drink, constituted "cruel and inhuman treatment", but fell short of torture, in a landmark case. Since , the " War on Terror " has led to new human rights concerns.

The most recent criticism has concerned the Prevention of Terrorism Act , a response to a perceived increased threat of terrorism. This act allows the house arrest of terrorism suspects where there is insufficient evidence to bring them to trial , involving the derogation opting-out of human rights laws, through the imposition of control orders.

Secretary of State for the Home Department Both the above Acts have been criticised for the lack of parliamentary discussion; the Anti-terrorism, Crime and Security Act went from introduction to Royal Assent in 32 days, the Prevention of Terrorism Act in The Civil Contingencies Act has also been criticised as giving the government very wide-ranging power in an emergency.

On February 2, , Parliament's Joint Committee on Human Rights also suggested that the Identity Cards Act might contravene Article 8 of the European Convention the right to respect for private life and Article 14 the right to non-discrimination. In , Home Secretary Theresa May introduced a Counter-Terrorism and Security Act, which was criticized by the civil liberties and human rights pressure group Liberty because 'Sadly this Bill ignores reforms that could improve the effectiveness of investigations and prosecutions and continues the discredited trend of unnecessary and unjust blank cheque powers that have the potential to undermine long term security'.

Part 4 of the Act provided for the indefinite detention without charge of foreign nationals certified by the Home Secretary as "suspected international terrorists" where such persons could not be deported on the grounds that they faced a real risk of torture, inhuman or degrading treatment if removed to their home country.

The Cultural Politics of Human Rights: Comparing the US and UK - Goldsmiths Research Online

Part 4 did not create new detention powers - under the Immigration Act , the Home Secretary has the power to detain a foreign national pending deportation. Instead, Part 4 removed a limitation on detention powers imposed by the requirements of Article 5 1 f of the European Convention on Human Rights which provided, among other things, that someone could only be detained for a short period prior to deportation. This was achieved by the British government derogating from the ECHR on the basis that the threat to the UK amounted to a 'public emergency threatening the life of the nation' within the meaning of Article However, the use of immigration detention powers meant that, although the British government could not force them, the detainees were technically free to return albeit facing a real risk of torture.

However, 2 detainees did leave - one to France and one to Morocco. While the Universal Declaration of Human Rights made no distinction between rights, the distinction appeared in the context of the deepening cold war tensions between East and West. The market economies of the West tended to put greater emphasis on civil and political rights, while the centrally planned economies of the Eastern bloc highlighted the importance of economic, social and cultural rights.

This led to the negotiation and adoption of two separate Covenants—one on civil and political rights, and another on economic, social and cultural rights. However, this strict separation has since been abandoned and there has been a return to the original architecture of the Universal Declaration.

In recent decades, human rights treaties such as the Convention on the Rights of the Child or the Convention on the Rights of Persons with Disabilities have integrated all rights. Second, economic, social and cultural rights have been seen as requiring high levels of investment, while civil and political rights are said simply to require the State to refrain from interfering with individual freedoms.



It is true that many economic, social and cultural rights sometimes require high levels of investment—both financial and human—to ensure their full enjoyment. Similarly, civil and political rights, although comprising individual freedoms, also require investment for their full realization. For example, civil and political rights require infrastructures such as a functioning court system, prisons respecting minimum living conditions for prisoners, legal aid, free and fair elections, and so on.

Finally, in reality, the enjoyment of all human rights is interlinked. For example, it is often harder for individuals who cannot read and write to find work, to take part in political activity or to exercise their freedom of expression. Similarly, famines are less likely to occur where individuals can exercise political rights, such as the right to vote.

For this reason, it is increasingly common to refer to civil, cultural, economic, political and social rights.

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