A Rights Discourse

The role of the law in defending freedoms, protecting liberty, providing remedies and the means to counter

discrimination and oppression

What do we mean by a right

“a thing one may legally or morally claim; the state of being entitled to a privilege or immunity or authority to act”

The Concise Oxford English Dictionary 9th Ed

How do you recognise a right?

What rights did the people entering these gates have?

How do we recognise a right?

Are they really “self evident” as the American Declaration of Independence asserts or are they won or lost through being contested between those that have the power to decide who has them and those that do not have them but decide to try to claim them?

Rights as:

• Positive rights

• Negative rights

• Legal rights

• Moral rights

• Absolute, qualified and conditional rights

• Claims and entitlements

Who confers these upon us?

Written and unwritten constitutions

The UK does not have a written constitution based on a bill of rights. This results in a negative, reactive response in which there is a vague presumption that one may act unless there is a law that expressly prohibits that act.

The position is clearer where there is a written constitution based on a bill of rights laying out what rights are conferred on people and which freedoms and liberties the state will defend.

Rights as a valid claim and rights as emancepatory activity

• Justified in accordance with a set of rules.

a right is more than a claim which may be weak or strong but a right exists as either something one is entitled to or not

Feinberg in Banks (2006), p104

• Proclaimed as a manifesto, objectives to be brought about through advocacy, activity and are aspirational in nature.

Properties of a (valid) right

• Identifies who is responsible for upholding the right

• Where a right has been violated a remedy is available

• Confers a greater level of equality, status, power and access to resources on the holder

• Involves a corresponding degree of sharing (some may consider a dilution) of the same on those responsible

Our status; as

• Citizens

• Subjects

• Clients

• Services Users

• Consumers

The development of human rights

• The universal declaration of human rights 1948Article 2Everyone is entitled to all the rights and freedoms set forth

in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

This included:

• Article 26

Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages.

• Article 23 (2)

Everyone, without any discrimination, has the right to equal pay for equal work

Council of Europe Convention for the Protection of human Rights and Fundamental Freedoms 1950

Article 14- Prohibition of discriminationThe enjoyment of the rights and freedoms

set forth in this convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status

Anti discrimination Law in the UK

• Sex Discrimination Act 1975

• Equal Pay Act 1970

• Race Relations Act 1976

• Disability Discrimination Act 1995

• Disability Rights Commission Act 1999

• Race Relations (Amendment) Act 2000

• SEN and Disability Act 2001

Continued

• Employment Equality (religion or belief) Regs 2003

• Employment Equality (sexual orientation) Regs 2003

• Gender recognition Act 2004

• Disability Discrimination Act 2005

• Employment Equality (Age) Regs 2006

Equality Act 2006

Replaces CRE, DRC,EOC with CE&HR, with a remit to encourage and support:-

• People’s ability to achieve their potential not limited by prejudice or discrimination

• Respect and protection for individual’s human rights• Respect for the dignity and worth of each individual• Each individual have equal opportunity to participate in

society• Mutual respect for groups based on valuing diversity and

respect for equality and human rights

The legal provision identified

Makes it unlawful to discriminate against another person on the grounds of their :-

• Belief and Religion• Gender (including reassignment of gender)• Sexual orientation• Age• Race• DisabilityHowever exemptions may be applied for in certain

circumstances, e.g. some job advertisements.

Human Rights Act 1998

A principle effect of the Human Rights Act 1998 is to incorporate the European Convention on Human Rights into UK domestic law. This will have a significant influence on the development of UK legislation as legislators will need to be mindful of potential incompatibility with an article

The Human Rights Act 1998

• Article 3: Prohibition against torture, inhuman or degrading treatment or punishment ( absolute)

• Article 6: The right to a fair trial (Limited)

• Article 8: The right to respect for private and family life, home and correspondence (qualified)

UN Convention on the Rights of the Child 1989

The 40 articles contained in the convention are not enforceable as in the case with the HRA 1998 but as the UK ratified these in 1989 they are judged against the extent to which the way public bodies comply with the spirit of the articles in the convention

UN Convention on the Rights of the Child

• A child is anyone below 18 years (Article 1)• Respect for responsibilities, rights and duties of

parents (Article 5)• Every child has the inherent right to life

(Article 6)• Children have the right to be protected from

abuse, including sexual abuse neglect and exploitation (Articles 19 and 34)

Continued

• The child has the right to express an opinion and have this taken into account (Article 12)

• Mentally and physically disabled children should enjoy a full life (Article 23)

• Children have a right to a high standard of health (Article 24)

• The right to a standard of living adequate for the child’s well-being (Article 27)

• Right not to be tortured (Article 37)

Article 12 (in detail)

1) States parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2) For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

Children Act 1989

Although this comprehensive piece of civil welfare legislation does not make any specific provision to promote children’s rights, nor does it specify the word partnership as a principle of engagement. It is compliant with Art 12 as it does, on occasion, make it a requirement to obtain the views of children, taking into account their age and level of maturity.

Other measures to safeguard welfare

The care standards Act 2000 introduced a range of National Minimum Standards and regulations on services that Local authorities and other statutory bodies provide and are inspected against. This represents another way by which the work of public bodies is scrutinised.

Progress?

• Monday 19th November 2007 was world toilet day. This was held to remind us that 2.6 billion people don’t have access to a toilet that secures the separation of foul and portable water. That is 40% of the world’s population and has the result of 5 million child deaths per year from sanitation related diseases such as diarrhoea and cholera.

Useful websites

www.hmso.gov.uk/acts1998/19980042.htm

www.savethechildren.net

www.childrenareunbeatable.org.uk

www.unhchr.ch/html/menu3/b/k2crc.htm