By Alison L Young
Sir David Williams Professor of Public Law, University of Cambridge
Human rights are often seen as restrictions. They stop the State from acting in a manner that would harm your rights. This is why most human rights are seen as negative rights. The State should not take actions that torture you, or forbid you from practising your religion, having a family, or expressing your opinion.
Human rights can also create positive rights. They can require the State to act to ensure that you are able to exercise your rights. Sometimes this can mean providing legislative or administrative frameworks. The right to peaceful protest, for example, is a positive as well as a negative right. States are required to ensure that there is a legislative framework to ensure the right to protest peacefully is fully achieved, by, for example, closing streets where a march will take place, or policing a demonstration to ensure all protests and possible counter-protests are peaceful. The right to life also requires States to ensure that the police are able to protect those whose lives are under threat, and to carry out inquiries into deaths that occur when an individual is held in police custody.
The State can also be required to ensure that rights are not breached by individuals other than the State. The right to life, for example, would not be effectively protected if it only required the State to ensure it did not kill citizens, but did not require States to ensure laws were enacted to prevent individuals from committing murder! Article 8 (the right to privacy) and Article 10 (freedom of expression) also require the State to ensure that they are not breached by private individuals – for example, to ensure that stories harming the right to privacy are not published when there is little value in the story harming privacy, but also that freedom of expression is upheld when there are good reasons for publishing the story, even if this does harm privacy.
The Government’s consultation argues that positive obligations have extended ‘the Convention by judicial implication’. There are three main concerns. First, that these positive obligations are uncertain. This means that public bodies may not know that they are breaching positive obligations and may incur large costs defending human rights actions. Second, these positive obligations interfere with policy choices. Third, it means policy choices are effectively being made by the courts and not by Parliament.
Is the Government right to be concerned? If so, how should we balance these positive rights and the ability to provide effective public services?
Are positive obligations harder to predict? The example provided in the consultation paper concerns the right to life. A court found a positive obligation on hospitals to protect the right to life, in this case, in a situation where a voluntary patient in a hospital (that is, a patient who had agreed to treatment rather than being treated without the need for consent under the Mental Health Act 1983), who had been admitted because the patient was a suicide risk, had been given medically approved leave, but sadly then committed suicide.
It is true that there had not been a case before the Strasbourg court before where this positive obligation had extended to voluntary patients. However, as the UK Supreme Court indicated, the Convention did require States to take positive measures to prevent suicide, particularly in those situations where the state body in question was aware that a particular individual was a suicide risk. Why should this not also apply when a patient was admitted voluntarily as opposed to admitted in other circumstances?
Did this give rise to greater uncertainty, or an illegitimate expansion of Convention rights? If so, then we could also argue that the common law does the same. Common law develops on a case by case basis. It recognises principles underpinning cases and looks for relevant similarities and differences in a novel case before the court. Would we consider it a problem if the common law had found an obligation on the State to take measures for those at risk of taking their own lives in a new situation in a similar manner, drawing on earlier case law? Or is there something particular about positive obligations from Convention rights that makes the law more uncertain?
Forced Policy Choices
The consultation paper’s example of negative policy choices also involves the right to life. When an individual’s life is under threat, the State has a positive obligation to take proportionate measures in response to that threat to life. These have given rise to ‘Threat to Life’ notifications, or Osman warnings, after the case that gave rise to this positive obligation. The consultation paper argues that these obligations add complexity and expense to police operations. This can be made worse when these notifications are issued with regard to impending violence that may take place between rival gangs, where both sides may face a threat to their lives. This raises a deeper problem – are the courts forcing policy choices onto public authorities, overriding the decisions of elected representatives?
To unpack this argument, we have to look more closely at what court decisions imposing positive obligations require. A positive obligation requires the State to ensure that there is an administrative or legal framework in place to protect a human right – here the right to life. Courts do not set out the requirements of ‘Threat to Life’ notifications. Those can be set by public authorities, or by Ministers enacting secondary legislation, or from Parliament enacting primary legislation.
This does not mean that there is no check from courts. But it is important to recognise how this check operates. In situations in which there is a clear breach of the right to life, then that would give rise to a situation in which these measures would be insufficient to ensure the protection of the right to life. For example, if a ‘Threat to Life’ notification system did not extend to ensure the protection of an individual who had provided clear, verified evidence to the police that their life was in danger from a specified individual, then courts would be concerned that these measures did not offer sufficient protection of the right to life. However, there is still space for a public body to determine what evidence is required, or whether this should extend to other situations in which there is a threat to life.
This is not to argue that there are no limits on policy choices. But it is to recognise that there is still space for democratic oversight as to how public authorities should uphold these positive obligations.
Policy v Human Rights
Positive obligations can place burdens on the State. The deeper question here is whether we think the price is worth paying to protect human rights. The real policy choice here is as to the type of society in which we wish to live. Do we wish to live in a country where we think that protecting some human rights comes at too high a cost? Or are we prepared to accept these costs because we want to ensure human rights are fully protected? These are not questions that can be answered in the abstract. But they are also questions that cannot be answered merely by citing a few examples on either side. It requires further public engagement as to the type of society in which we wish to live.