State Duties And The Protection Of Human Rights

State Duties And The Protection Of Human Rights Presented by: Professor Merris Amos (Department of Law, Queen Mary University of London) Date: October 13, 2021 (3.30 pm – 04.30 pm) Introduction - Liberty - Coronavirus (Right Human Support) Bill 2021 - A change in direction from 'rights' to 'duties' - The state duties generated by human rights are often neglected - It is no longer safe to assume that the state will comply with its duties - COVID-19, Grenfell, Windrush - A stronger focus on state duty is necessary and important to the protection of human rights Taking State Duties Seriously - The state is not the only duty bearer, but is the most important - Realistic, clear and honest about burdens, justification and allocation - What are the barriers to upholding rights? - Problems with 'complaints led' models - large scale violations are not addressed until too late - What about rights holders not yet born? Climate change - Can we expect the state to act morally? Why We Don't Take State Duties Seriously  The political resonance, and significance, of the human right movement  Talking about duty is difficult and not 'fun'  Merris Amos  Duties are a complex problem  States are not committed to making their duties clear  Unsuccessful arguments to include state duty in the UDHR 1948  American Declaration of the Rights and Duties of Man 1948  Contrast the willingness to impose duties on individuals and corporations A Framework For Thinking About State Duty - Perfect state duties - relatively determine ought or may be enforced by law - Imperfect state duties - in some way incomplete - An enforcement views? - Further division into universal and special duties - The rejection of injury - perfect duties are to be preferred Universal State Duties In The UK Context  Duties generated by the Human Rights Act 1998, common law statute, international law  A number of imperfections  Defining the extent of the duty reliance on courts  Parliamentary sovereignty - no 'perfect' duty to act compatibly with human rights  The limited impact of unincorporated international human rights law  Access to justice - prospect of litigation unlikely  Absence of a culture of human rights How To Perfect State Duties? 1. Targeted regulation - can the state accurately imagine all potential risks? 2. Scotland's bill of rights - strong focus on state duties Monitoring, Enforcement And Building A Culture Of Human Rights  Access to justice  A duty on government to publish a 'human rights plan'  Specialist monitoring bodies - Equality and Human Rights Commission  Statutory and non-statutory guidance  Adequate resources for key institutions 'Due Regard' Duties - For example, the public sector equality duty (PSED) contains Morris s.149 Equality Act 2010 - 'due regard to the need to eliminate discrimination and advance equality of opportunity' - Process, not outcome reassurance that human rights taken into account - A failure? Interpretation has weakened the duty - Courts wary of imposing 'formulaic' mantras - Failure to comply 'cured'if court concludes outcome would not have been substantially different A Duty To Comply  Proposed in Scotland  A 'duty to comply' with human rights after a specified period  Not clear if this would be legally enforceable  An acceptance that the legal system is completely broken?  An existing duty that, in theory, could be enforced by a right holder  How to achieve clarity over what it is necessary to comply with? Conclusion  A bill of state duties?  UN Human Rights Council - the right to a safe, clean, healthy and sustainab environment  How will this be realized?  Protect human rights but also remember state duties