Transcript A Rights discourse

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
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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
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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
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Citizens
Subjects
Clients
Services Users
Consumers
The development of human rights
• The universal declaration of human rights 1948
Article 2
Everyone 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 discrimination
The 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
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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
• Disability
However 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