On 2 October 2000, the Human Rights Act was brought into force, significantly strengthening the protection of human rights across the United Kingdom and providing a means by which human rights can be enforced. This October, the British Institute of Human Rights has organised “15 Days of Action”, including a tour with events across the UK to celebrate this important anniversary our Human Rights Act and the difference it has made people’s lives across the UK.

Each day we will be looking at one story from each of the last years fifteen years. Today, we look at 2007 and the case of Dickson v United Kingdom. Decisions of the UK courts tend to be upheld at the European Court of Human Rights. However the Court still provides an important check on power, including that of the UK judiciary, our human rights have not been interpreted in quite the right way. Dickson v United Kingdom is one of those cases.

Protecting Human Rights can be challenging  

Sometimes the respecting human rights feels instinctively agreeable. For example, ensuring the police are not torturing people, making sure the government does not censor newspapers, preventing slavery takin place on our shores – these are the kinds of issues that often feel right. But sometimes respecting people’s human rights can be challenging, particularly where the person claiming their human rights has given short shrift to the rights of others. Kirk Dickson had kicked another man to death and had been sentenced to life imprisonment as a result (the minimum term for this sentence was set at 15 years). Not a man likely to attract much sympathy. But the fact is that human rights belong to everyone – as our Supreme Court recently said human rights are universal for all people “whatever their frailty or flaws.” However, most human rights can, of course, be limited and restricted as a consequence of a person’s actions. In Kirk Dickson’s case his right to liberty was restricted through imprisonment, which also restricted his right to respect for private life and so forth. But, as the European Court of Human Rights stressed, no one’s human rights can be completely taken away.

Which human rights?

The particular human rights involved in this case were the rights to respect for private life and family life. Kirk married his partner, Lorraine, in 2001, but was not due to be released from prison until 2009 by which point Lorraine would have been 51. The couple wanted to have a child together and, since conjugal visits are not permitted in the United Kingdom, applied for facilities for artificial insemination. Applying the Home Office’s policy in place governing applications for artificial insemination by prisoners, the application was refused by the Home Secretary. The Dicksons sought to challenge the policy in the domestic courts but were refused permission to do so on the basis that the policy had been upheld in an earlier case heard by the Court of Appeal as compatible with human rights.

The decision

The European Court of Human Rights reviewed Kirk’s situation from the starting point that “prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty”. This included the rights to respect for private life and family life. Restrictions on other rights required justification, although the court did note that such justification could flow “from the necessary and inevitable consequences of imprisonment (…) or (…) from an adequate link between the restriction and the circumstances of the prisoner in question” However, the Court noted, “it cannot be based solely on what would offend public opinion”.

The Court went on to look at the requirements of the right to respect for private and family life and, whilst not engaging in the specific question of whether the rights to respect for private life and family life include a right to procreate or to access to artificial insemination, considered that to prevent a couple from attempting to conceive a child in the Dicksons’ circumstances was an interference with the requirements of rights to respect for private life and family life. Having reached this conclusion, the court went on to hold that the threshold by which couples would be permitted to access artificial insemination under the Home Office’s policy was so high that it did not permit any real assessment of the particular competing interests involved or the proportionality of restricting access to artificial insemination in any particular case. On that basis, the court found a violation of the rights to respect for private life and family life, requiring the Home Secretary to reconsider the policy.

Respecting decisions we may disagree with

It is cases like these – where the individual claiming their rights has shown scant concern for the rights of others – that may be hard to swallow and which can generate consternation and criticism. However, the principle underlying the court’s decision must be right. If human rights are not universal and can be forfeited in their entirety through certain behaviour or actions, then they are no longer “human” rights, but rights only for “some humans”. The very essence of human rights is that they are universal and are enjoyed simply by virtue of our being human. As the court noted, these rights can be restricted and limited in consequence of our behaviour, but they can never be taken away.

The Human Rights Act, provides all of us with a minimum degree of protection, whoever we are and whatever we might have done. Our Human Rights Act ensures that the will of the majority, public opinion and emotive instincts can never be used to trample on the vulnerable, the marginalised or the unpopular, and, in doing so, protects our common humanity and dignity as human beings. As the Act reaches its fifteenth anniversary, surely that is something to celebrate?