Actual Human Rights….

May 9, 2012 by
Filed under: Social Economy 

So quite an amusing tweet-cussionbetween Louise Mensch and Amanda Bancroft over the distinction between the Human Rights Act and *Actual Human Rights*[1].

Now the HRA basically put the European Convention on Human Rights –drafted by UK lawyers – into domestic law. The UK has one of those funny dualist legal systems where the government can sign up to *any* international treaty[1], but until domestic law is drafted, those treaties do not apply domestically: see discussion here.

This is why Pinochet 1998 was such a big deal. As the UK had only incorporated the prohibition on torture in 1988  there had to be proof that – in a dictatorship lasting from 1973-1988/89 – there had been actual torture occurring in 1988. Before that the UK would not have had any legal provisions that would have seen the prohibition on torture as the jus cogens – a law that trumps all other laws, such as diplomatic immunity or territoriality – that it is now seen as being, and laws cannot be used retroactively.

In any case, I digress. My question is: what do you think are *actual human rights*? The HRA only covers political and civil rights: as in to life, freedom from torture, to a just legal system, to free and fair elections etc… The main debates are generally around over Strasbourg’s slightly kinder understanding of ‘the right to family life’ and what actually amounts to ‘cruel and inhuman treatment’:  for housing, for example, the House of Lord’s test used to be irrationality – only if a local authority was irrational would they step in –  now it *should* be reasonableness.

Personally, I do not think the HRA goes far enough: the UK has consistently refused to accept that Economic and Social Rights are justiciable – something you can fight for in court – and frankly, it should.

Over to you.


[1]  and the blog post that kicked it all off.

[1] You know… if it follows due process and the like


Comments

  • Marshall

    When is a mensch not a mensch? When it strays from areas it really knows about.

  • http://www.margaret-bowker.com/ M-bowker

    Gaia Marcus’s post is very interesting and I belatedly  came across it when reading Matthew’s latest blog on July 16. It made me realise that I was involved with this issue myself  when commenting on the US Healthcare Act and its upholding or not by the US Supreme Court. I was arguing it should be upheld, using actual human rights as one of the pillars of my argument.  And  back in April,  I did a piece referring to  the new thinktank INET@Oxford and Professor Homer-Dixon’s theory that the present times have the potential to be very disturbed; and in transferring this theory to economic suffering, asked how far people should be subject to reduction before it becomes oppressive; and I think now, suggesting that it affects their actual human rights. And yet I am anxious about some of the health and safety interpretation.