The Principle of Universality

The concept of universality, the foundation of human rights law, is under threat with the UK Government’s proposed Bill of Rights Bill, better known as and hereafter, the “Rights Removal Bill”. We thought it was therefore important to produce something which explains what universality is, what it means and why the Rights Removal Bill means it is under threat.

At the end of this article there is a link to our Rights Removal Bill hub, with information on all aspects of the Bill and its impact.

This blog will cover how human rights came to be, and why, what universality means and why we’re concerned about the Rights Removal Bill.

Human rights are not new, with many of the ideas having been around for over 800 years. The Magna Carta, for example, was issued in England in June 1215 and was the first document to put into writing the principle that the King and his Government were not above the law.

The Human Rights Act (1998) is our domestic law here in the UK, which puts human rights duties on public bodies and those delivering a public function. However, the Human Rights Act was not created from scratch; it pulled down the rights in the European Convention on Human Rights (ECHR) into legislation in the UK. So, to understand the Human Rights Act, first we need to understand the ECHR (read our guide to the ECHR here).

The ECHR came about in 1950, as a direct reaction to the Universal Declaration of Human Rights (UDHR) and is credited in part to Winston Churchill, with its drafting done mainly by British lawyers. You can read more about the ECHR's history here. The UDHR was an international idea, adopted by the United Nations in 1948 after World War II, a stark example of what happens when there are no limits on power. Countries across the world came together to agree a set of rules that all Governments should follow on how they treat people: human rights. The goal was to ensure that never again can any Government (including an elected one) decide who matters and who does not. This is what universality means – that all people, no matter who they are or where they live, are entitled to the same rights protections regardless of politics or circumstance.

The ECHR is based on the rights in the UDHR, bringing them into law. All Council of Europe member states are signed up to the ECHR and new members are expected to approve the ECHR at the earliest opportunity. The ECHR also established the European Court of Human Rights. Any person who feels their rights have been infringed under the ECHR by a state party can take a case to the Court. You can read our explainer on taking a case to court here. Having this additional layer to human rights protections on a European scale further protects the concept of universality, as it means that regardless of the decision made in an individual’s home courts, there is still the option to ask the European Court of Human Rights to get involved if a wrong decision is felt to have been made.

The Human Rights Act 1998 was passed with cross-party support by the UK Parliament; it does not belong to any one particular political party. The Human Rights Act’s principal aim was to “bring rights home”, by taking 16 of the fundamental human rights in the European Convention and putting them into our law here at home. We would still have the protections of the ECHR without the Human Rights Act, but it makes human rights far more accessible and easier to bring challenges against public authorities in our local courts. It also gives the UK a sense of ownership over rights on a national level.

The rights within the Human Rights Act, brought into UK law from ECHR are interwoven into the devolution arrangements in Northern Ireland, Scotland and Wales. The Scotland Act 1998, the Wales Act 1998 and the Northern Ireland Act 1998 (which is part of an international peace process) established devolved legislatures and administrations. Each devolved nation has a range of issues for which it is responsible, many of which impact on human rights. You can read more about our HRA on our Hub here.

So now that we have explained where human rights come from, it’s important to look at the principle commonly referred to as universality. It comes back to the very reason we have human rights law in the first place, the idea that human rights are for everyone, and that everyone should be protected by those in positions of power.

There are two types of rights, absolute and non-absolute. Absolute rights can never be restricted, and non-absolute rights can sometimes be restricted if a legal test is met. (Read more about this in our guide to the Human Rights Act). Universality means that even when those non-absolute rights are being lawfully, legitimately and proportionally restricted, the individual rights remain, but that there is a lawful and legitimate reason to restrict them at the time, in that situation. An individual’s absolute rights can never be restricted.

Lily committed deliberate arson and was charged and sentenced to 6 months in prison. This means her Article 5 right to liberty  (our guide to Article 5) has been restricted, as she has to stay in prison. However, because she deliberately and knowingly committed a crime which risked the rights of others, the punishment for which is prison, this restriction on her right to liberty is permitted within the human rights framework.  

While Lily is in prison, she becomes poorly and has to be separated from the other inmates. She is not allowed to spend any time with them and is treated as though she is lesser than them, not allowed to go outside or to leave her room at all. This makes Lily feel like she is being punished even though it is not her fault she is sick. The forced isolation is has a serious impact on Lily, and she becomes more unwell both physically and mentally. The solitary confinement begins to make her feel that her life is not worth living, causing her serious mental distress.

Although the restriction on Lily’s right to liberty is lawful, legitimate and proportionate, her other rights still apply. Including her right under Article 3 not to be subject to torture or inhuman and degrading treatment. (Find our guide to Article 3 here). This is an absolute right which can never be limited by the state, regardless of what a person has done or who they are. Article 3 does not have the three-stage test that Article 5 has, it can never be lawful, legitimate or proportionate to treat someone in a way which causes them serious mental or physical harm.

Lily’s story exemplifies the concept of universality. Even though Lilly is a convicted criminal and her right to liberty is being lawfully restricted, she still has other human rights which must be upheld. Indeed, it is in these very situations where we are most vulnerable that human rights are so crucial.

S was brought to the UK from Jamaica at the age of four. He completed his schooling in the UK, but did not register as a British citizen as he would have been entitled to after ten years, because the fees were too high and his family could not afford it. He lived with his mother and assisted her as a carer for his younger siblings.

In 2018, S was convicted of possession with intent to supply cannabis. He was sentenced to 15 months in prison and subsequently [was] to be deported to Jamaica. The Court noted that while S was in prison, his younger brother, with whom he had a relationship more akin to that of a father and son, had suffered. The younger sibling had exhibited behavioral problems, which were resolved when S returned to the family home. It was established that S’s mother’s mental health had also suffered as a result of being separated from S and that she would be unable to care on her own for his younger siblings without his support.

Evidence was further presented about the efforts at rehabilitation that S had made, including ending the misuse of cannabis and the conclusion that he was at low risk of reoffending. On this basis, S’ deportation order was successfully overturned.

This was because of S’ right to a private and family life, protected by Article 8 of the Human Rights Act. You can read more about this right in our explainer here. Although S was not a British citizen and had a criminal conviction, the concept of universality meant that he was equally entitled to have his right to private and family life considered and applied using the legal test that any restriction must be lawful, legitimate and proportionate.

The Government’s Rights Removal Bill seeks to replace our Human Rights Act. The Bill flies in the face of the concept of universality. It would effectively strip people in certain situations of their human rights, meaning once again people in positions of power would be able to decide who is deserving of rights protections and who is not.

The Rights Removal Bill in practice: limiting human rights for people this Government doesn’t deem deserving

Under the Rights Removal Bill, Clause 8 seeks to restrict the protections provided by the right to private and family life (Article 8), under the disguise of restricting immigration. This includes preventing non-British citizens like S, who have committed a criminal offence, from being able to rely on their own and their family’s Article 8 right to private and family life to not be deported to another country. These rights are already restricted for those without British Citizenship under the raft of legislation known as the Hostile Environment, but the Rights Removal Bill seeks to eradicate them. You can read about what these changes are in detail and what it would have meant for S and all of us here. In short, under the Rights Removal Bill, it is quite possible that S would have been deported.

Aside from the legally questionable nature of these restrictions (especially in relation to international refugee law), this fails to recognise what we’ve been explaining here, that our human rights are there to protect everyone – no matter who you are.

Those with unsettled immigration status will be at the sharp end of these discriminatory changes, but they will affect us all. This is because we know that changes like this on paper and the rhetoric surrounding them heavily diminish the culture of respect for human rights. After all, if the UK Government itself doesn’t believe in the fundamental principle that rights belong to all of us, why should anyone else? We know that decisions made by people in positions of power influence culture in our communities. We believe the Rights Removal Bill will create a chilling effect in discouraging all individuals from raising their right to private and family life, and public officials from considering and respecting it.

The changes to the right to private and family life are not the only parts of the Rights Removal Bill which undermine the concept of universality.

• The Bill weights decisions around damages for a rights breach based on how deserving or undeserving a person is, rather than being guided by what is just and fair based on the facts of the case. Read more about picking and choosing who gets accountability for rights breaches here.
• The Bill limits our access to justice with additional barriers to seeking independent review in the courts. This will disproportionately affect communities who already have to fight for their rights, to belong, and to secure justice. Read more about the creating extra barriers to justice here.

If the Human Rights Act is replaced by the Rights Removal Bill, universality will effectively cease to exist. If the Government is able to decide that they can disapply rights in certain settings, to certain people, then by definition it is not a universal system. As explained above this is part of the very nature of why we have human rights today, and could be the start of a very slippery slope for people like Lily, ‘S’ and all of us who rely on the Human Rights Act to protect ourselves and our families.

If you’re concerned by what you’ve read, please take action.

• Write to your MP today, and tell them that you believe human rights are universal, you don’t want the Government deciding who has right and who does not.
• Join our Rights Removal Bill campaign mailing list and stay informed
• Have a look at our Bill of Rights hub to find out more about how this reform would damage human rights in the UK and what else you can do.

Please note: BIHR Explainers are provided for information purposes. These resources do not constitute legal advice. The law may have changed from the date of writing.