how are human rights protected in the uk essay

Rights in Context

Definitions.

Civil liberties are a range of rights and freedoms that demand non-interference by government. They are based on the notion of citizenship; being a citizen of a certain country, and usually include freedom of speech, a free press, freedom of association, and freedom of religion. The government should not interfere in these areas.

Human rights belong to all people in all societies, by virtue of being human. They are inalienable, meaning they cannot be taken away under any circumstance and are absolute- they must be fully upheld in all cases.

Major milestones

Magna Carta, 1215: signed by King John, the ‘Great Charter’ was a series of written promises between the king and his subjects. The king agrees to govern England and deal with its people according to the customs of feudal law. It was an attempt by the land-owning barons to stop the king from abusing his people. From this perspective, it can be seen as the first example of an attempt to protect the people from being caused suffering- a forerunner to the idea of human rights.

Human Rights Act, 1998: this came into effect in __2000 __and incorporated the European Convention on Human Rights (ECHR) into UK law. For the first time, a legal documentation of UK citizens’ rights was enshrined in law, giving judges an opportunity to check that government laws are compatible with the act. The main function was to make explicit in law rights which, in effect, already existed. UK citizens’ access to the European Court of Human Rights was therefore strengthened. The act includes rights such as the right to life, freedom from torture, right to a fair trial, freedom of thought and expression, right to marry, and much more.

Freedom of Information Act, 2000: this established in law the public ‘right to know’, and made government more open and therefore accountable in its decision-making.

Equality Act, 2010: The Equality Act __2010 __legally protected people from discrimination in the workplace and in wider society, replacing previous anti-discrimination laws (e.g. sex discrimination, race relations) with a single Act, making the law easier to understand and strengthening protection in some situations. It set out the different ways in which it is unlawful to treat someone.

The protection of rights in the UK

In recent years, it has been the role of judges and the courts to protect rights and liberties in the UK. One way in which this is done is through judicial review, which is the checking (and possibly overturning) of actions of government. This is more difficult in the UK than in the USA, where, due to the existence of a codified constitution, judges can easily check whether actions carried out by the government are constitutional. In the UK, judges cannot overturn Acts of Parliament but can decide on the lawfulness of actions carried out under delegated legislation (that is, laws that allow other bodies, such as ministers, to act with Parliament’s authority). Judges can decide whether ministers are acting beyond their power through this measure (the doctrine of ‘ultra vires’- beyond the power). An example of a successful judicial review was in November 2013 , when the Court of Appeal upheld a legal challenge by five disabled people over the decision to abolish the Independent Living Allowance.

Judicial review is controversial, not least because it means that unelected judges are, in effect, making policy. The process is also very costly, and most reviews end up siding with the government anyway.

Judges also protect rights through the use of the Human Rights Act (HRA). This enables judges to challenge cases on the basis of human rights, for example in __2005 __the ban on prisoners voting was declared unlawful. Another notable case was that of Abu Qatada, whose deportation to Jordan was blocked due to the fear that evidence obtained under torture would be used against him. In such cases, courts can issue a ‘declaration of incompatibility’, forcing Parliament to revise the legislation or to set aside certain provisions of the HRA- a process known as derogation. Supporters of the HRA suggest it has strengthened the capability of judges to effectively uphold civil liberties, has educated the people about their rights, and has made government ministers take rights and liberties into account more.

The Human Rights Act is not, however, fully entrenched. It cannot overturn Acts of Parliament and is not binding on Parliament (Parliament can amend/overturn aspects of it).

The Human Rights Act is controversial, as it allows judges to ‘rewrite’ legislation passed by elected governments. Some also argue that the HRA ‘inflates’ rights, meaning that rights such as the right to marry enjoy the same status in law as the right to be free from torture. Many Conservatives view the HRA negatively, as it means that in some cases the rights of an individual (such as Abu Qatada) take precedence over the rights of society at large (Abu Qatada was suspected of being involved in radical Islamic terrorism, which is why the government wanted to deport him). Conservatives have proposed replacing the HRA with a ‘British Bill of Rights’, although exactly what is meant by this is unclear.

Civil liberties in recent years

Recently, there has been a growth of a human rights ‘culture’ amongst judges, perhaps as a result of measures such as the HRA. Judges increasingly see themselves as the protectors of human rights and are increasingly willing to challenge ministers. This is often a response to the perceived trend of governments to expand their own powers at the expense of rights/liberties. Examples are below.

Civil liberties under Labour:_( source: politics.co.uk ) _The Labour government elected in 1997 __was frequently accused of running a “ nanny state ”, but by the time of the __2010 __general election, criticisms had increased to more serious accusations of excessive state interference and state control, infringements of civil liberties and a gradual erosion of the rights of the individual. One of the main concerns was the enormous number of new criminal offences brought in by Labour. Between __1997 __and __2009 , 4,289 new criminal offences were created, approximately one for every day the party was in power; and the number continued to increase, rising from 27 new offences a month under Tony Blair, to 33 a month under Gordon Brown.

Further concerns about infringement of civil liberties were raised by the passing of the Regulation of Investigatory Powers Act __2000 __(RIPA), dubbed the ‘snoopers’ charter’. The Act creates a regulatory framework to govern the way public bodies, such as the police and security and intelligence services, use covert techniques when investigating terrorist threats and other serious crimes, the purpose being to ensure investigatory powers are used in accordance with human rights.

There were numerous other measures introduced by Labour, claimed as necessary to fight the so-called “ war on terror ”, which was seen as perhaps the most serious threat to civil liberties. Tony Blair suffered his first defeat as prime minister in __2005 __when MPs rejected his call for the pre-charge detention limit for terror suspects to be increased from 14 to 90 days. The move had attracted warnings of a possible infringement of habeas corpus. MPs later agreed on an increased time limit of 28 days. A further attempt in __2008 __under Gordon Brown’s leadership to increase the time limit to 42 days was thrown out by the Lords.

The introduction of ID cards together with an accompanying national identity register was widely opposed, as was the increased retention of data on the DNA national database, particularly the decision to store the DNA of large numbers of innocent people. Excessive use of stop and search powers also caused concern. Any police force authorised by the Home Secretary could randomly stop and search any person or vehicle on suspicion of terrorism under Section 44 of the Terrorism Act 2000 .

Civil liberties under the Coalition:_( source: politics.co.uk ) _The Coalition came to power promising to restore the rights of individuals. The use of Section 44 of the Terrorism Act 2000 __which allowed police to carry out random stop and search acts - and which had been ruled unlawful by the European Court of Human Rights in January __2010 __- was repealed by the Coalition and replaced with a more limited power under the Protection of Freedoms Act introduced in __2012 . Other measures in the Act include reducing the pre-charge detention of terrorist suspects to a maximum of 14 days; requiring schools to obtain parental permission before taking fingerprints of children; ending the storage of DNA of innocent people.

However, not all civil liberties concerns have been addressed by the Coalition and the spectre of another ‘snoopers’ charter’ has raised its head in the form of the Draft Communications Data Bill published in June 2012 . The Bill proposes to allow security services access to all communications data – i.e. records of all emails, texts and phone calls – and for communications service providers (CSPs) to collect the data which will be stored for 12 months.

The right to protest and the policing of protests is another issue which constantly raises questions about infringements of civil liberties, one current bone of contention being so-called ‘kettling’ where demonstrators are contained within a particular area by the police. The Ministry of Justice has also had to defend cuts to legal aid, included in the Legal Aid, Sentencing and Punishment of Offenders Act passed in May 2012 , a move which has provoked outrage from civil liberties campaigners, disability groups, the legal profession and others. Liberty warned that publicly funded legal advice and representation “ will be put beyond the reach of vast swathes of the British population ” and the Labour peer, Lord Bach, led a Lords rebellion against the cuts.

House_of_Commons

House of Commons

Human Rights and the UK Constitution

by Colm OCinneide | Sep 28, 2012

About Colm OCinneide

UK human rights law has been the subject of considerable controversy over the past few years. A new report that I have written for the British Academy Policy Centre, Human Rights and the UK Constitution, aims to clarify the central issues at stake in this debate. Completion of the report was overseen by a steering group comprised of five British Academy Fellows – Professors Vernon Bogdanor, John Eekelaar, David Feldman, Sandra Fredman and Conor Gearty – and also Francesca Klug (LSE). The report has also been rigorously peer reviewed. Readers are invited to read the report for themselves and draw their own conclusions. However, its central arguments are summarised in what follows.

The existing state of UK human rights law has in general received favourable reviews from legal academics and the judiciary. However, it has also been subject to strong criticism from certain quarters. In particular, calls have been made for a fundamental re-think of the UK’s relationship with the Strasbourg Court, and for the HRA to be replaced by a new ‘Bill of Rights’.

However, many of these criticisms appear to be lacking in substance when subject to close scrutiny. For example, some critics have attacked how the European Court of Human Rights interprets Convention rights, alleging that the Court is too activist (see the criticisms directed against the Strasbourg Court by MPs during the House of Commons debate on prisoner voting rights on 10th February 2011,  H.C. Deb.  10 Feb 2011, cols. 493-586). However, the ‘living instrument’ approach adopted by the Strasbourg Court to interpreting the ECHR appears to be fully in line with the practice of other international courts. It also ensures that the case-law of the Court is able to reflect modern moral and social standards: for example, it has allowed the Court to play a leading role in protecting the rights of LGBT persons across Europe.

Some have also accused the Strasbourg Court of lacking the legitimacy to pass judgment on the human rights record of a well-established democracy like the UK (See e.g. the arguments made by M. Pinto-Duschinsky,  Bringing Rights Back Home: Making human rights compatible with parliamentary democracy in the UK  (London: Policy Exchange, 2011). However, the structural relationship between the UK and the Court also seems to be fully compatible with democratic principles. While its judgments are binding in international law, Parliament and the UK government can choose under national law not to give effect to judgments of the Court. Whether it is wise or justified for them to do so is another question. Good reasons exist as to why the UK should be slow to refuse to comply with a judgment of the Strasbourg Court, not least because of the potential damage it could cause to the UK’s international reputation and to human rights and democracy across Europe at large.

 Criticism has also been directed at the Human Rights Act 1998 and how it has been interpreted by UK judges, partially on the basis that it has linked UK law too closely to the Strasbourg case-law and stunted the development of a ‘home-grown’ domestic rights jurisprudence. As a result, many critics of the HRA seem to view proposals for a Bill of Rights as an opportunity to dilute what they see as the problematic influence of the ECHR on UK law.

However, any attempt to de-incorporate the Convention rights from UK law will give rise to serious legal complications. To start with, the Northern Ireland Act 1998, the Scotland Act 1998 and the Government of Wales Act 1998 all require the devolved legislatures to comply with Convention rights. In addition, even if the HRA was repealed or amended so as to de-incorporate Convention rights, they would still be potentially applicable by UK courts whenever EU law was in play (see Articles 52(3) and 53 of the EU Charter of Fundamental Rights). Furthermore, any moves in the UK to uproot the Convention rights would limit the ability of the UK government to object if countries such as Russia, Turkey or Serbia did the same. In general, it would be difficult and arguably undesirable for a new Bill of Rights to cut off UK law from the influence of Strasbourg, or to de-incorporate Convention rights.

None of the above discussion precludes the introduction of a ‘Bill of Rights plus’, which would add a new layer of rights protection to UK law that would complement the protection afforded by Convention rights, as for example the Basic Law does in Germany. However, such an extended Bill of Rights would obviously extend the judicial role in protecting individual rights, rather than reining it in as many critics of the HRA would like.

It would also be possible for a Bill of Rights to ‘repackage’ the provisions of the HRA and re-incorporate Convention rights within a different legislative framework, or to introduce a purely declaratory (i.e. not legally binding) Bill of Rights and Responsibilities, as proposed by the last Labour administration . However, it is unclear how such proposals would alter the status quo in any meaningful way.

In general, it is difficult to identify reforms which would clearly improve the existing state of UK human rights law. In light of this analysis, and given the relatively smooth functioning of the HRA thus far, it remains open to question whether replacing the HRA with a Bill of Rights would improve UK law for the better. The current state of human rights law in the UK appears to strike a defensible balance between respect for democracy and the need to protect individual rights. Attempting to recalibrate that balance may prove to be a difficult and thankless task.

Colm O’Cinneide is a Reader in Law at the Faculty of Laws, University College of London .

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The UK’s Changing Democracy: The 2018 Democratic Audit

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How well does the UK’s democracy protect human rights and civil liberties?

A foundational principle of liberal democracy is that all citizens are equal, and so the protection of fundamental human rights is of critical importance for democratic effectiveness. In many countries a statement of citizens’ rights forms part of the constitution, and is especially enshrined in law and enforced by the courts. This has not happened in the UK, which has no codified constitution. Instead, in an article from T he UK’s Changing Democracy: the 2018 Democratic Audit ,  Colm O’Cinneide evaluates the more diffuse and eclectic ways in which the UK’s political system protects fundamental human rights through the Human Rights Act and other legislation, and the courts and Parliament.

Lady Justice, Old Bailey. Picture:  Lonpicman via a CC BY-SA 3.0 licence /Wikimedia Commons

How must human rights and civil liberties be protected in a democracy? Liberal democratic states are now expected to respect a range of fundamental human rights set out in international human rights treaties such as the European Convention on Human Rights (‘the Convention’). These extend from freedom from torture, to the right to fair trial and freedom from discrimination. It is generally recognised that the functioning of any genuine democracy must be based on respect for these rights, without which individuals cannot participate freely or effectively in the political process.

In the UK constitutional system it is generally assumed that the political branches of government should play a leading role in resolving disputes about the scope and substance of individual rights. However, the courts have become increasingly involved in adjudicating human rights issues over the last few decades. The protection of individual rights is now usually viewed as forming part of the ‘mission statement’ of the judicial branch of government, and human rights cases now form a considerable element of the case-load of the UK’s superior courts.

The Human Rights Act

If an individual fails to get a remedy before the UK courts under the HRA, they can take a case to the European Court of Human Rights in Strasbourg, as happened over voting rights for prisoners in UK jails. Any judgments made by the European Court of Human Rights against the UK are not binding upon UK public authorities or Parliament. However, strong expectations exist that such judgments by the Strasbourg Court will be complied with by the UK, along with all the states in the Council of Europe.

In addition to the HRA, the common law and other statutes passed by Parliament also play an important role in protecting individual rights by imposing important legal constraints upon public authorities. For example, the Equality Act 2010 prevents public authorities discriminating on the basis of race, sex, disability and other grounds of equal treatment. However, these extra sources of legal rights protection play supporting roles when compared to the HRA.

Despite these various layers of legal protection, human rights nevertheless remain a contested concept in the British political tradition. They are capable of being interpreted and understood in different ways. Deep disagreement often exists as to what exactly constitutes a breach of a fundamental right. Furthermore, different views exist as to when and how the courts should intervene to protect individual rights. Politicians regularly subject the HRA to criticism, and bemoan the influence exerted by the jurisprudence of the European Court of Human Rights (ECHR) over UK law. In 2010 and again in 2015 the Conservative election manifesto proposed replacing the HRA with a ‘British Bill of Rights’, although in practice Tory governments since 2015 have not been able to implement this idea.

Successive UK governments have also introduced legislation that has diluted protections for civil liberties and fundamental rights in the spheres of national security/counter-terrorism, immigration and socio-economic entitlements: it is likely that this pattern will continue. Brexit is posing further challenges, by in particular removing the safety blanket for certain non-discrimination, migrant and labour rights formerly provided by EU law.

The place of both the HRA and European Convention of Human Rights within the UK’s legal system thus remains open to debate, as does the status of human rights values more generally: no consensus yet exists as to how human rights should best be protected within the framework of the British constitution. And while the scope of legal rights protection in the UK is relatively strong, it is limited. Socio-economic rights are particularly poorly covered, and international human rights law has very limited impact on UK law or policy.

Strengths, Weaknesses, Opportunities, Threats (SWOT) analysis

The uk’s slow and cautious embrace of human rights.

The UK only became a democracy in a meaningful sense of that term by 1918 with the achievement of universal (male) suffrage after a long process of constitutional struggle. In the previous decades a wide political consensus had emerged to the effect that the Westminster Parliament should exercise its sovereign law-making powers (within the UK mainland itself) in a manner that respected both the rule of law and basic civil liberties. (For obvious reasons, the legal rules applying in the British empire’s colonies were treated differently.) These political constraints, taken together with the limited degree of protection afforded by the common law to personal liberty, helped to give rise to a culture of individual freedom that was comparatively well-developed for its era.

Until the Second World War and even into the post-war period most lawyers shared the complacent view of the turn-of-the-20th-century legal scholar A. V. Dicey that ‘the securities for personal freedom are in England as complete as the laws can make them’. He argued :

‘In England no man can be made to suffer punishment or to pay damages for any conduct not definitely forbidden by law; every man’s legal rights or liabilities are almost invariably determined by the ordinary Courts of the realm, and each man’s individual rights are far less the result of our constitution than the basis on which that constitution is founded.’

As Anthony Lester has commented, ‘the prevailing British constitutional ideology…treated British subjects as “subjects of the Crown” without the benefit of fundamental constitutional rights’. The liberties of the subject were ‘residual and negative in their nature’. The individual was free to do anything that the law had not forbidden, but enjoyed no embedded or constitutionally protected positive entitlements that could not be altered by new legislation or the exercise of ministerial prerogative powers. Respect for rights and freedoms in the UK thus depended on Parliament showing restraint when it legislated on matters that affected civil liberties. Even on the political left this stance was accepted by the Labour Party and trade unions. They feared that formally listing human rights would restrict their future ability to legislate in Parliament to achieve social or economic reforms. It might also introduce (conservative) judges as arbiters of what legislation was permissible.

However, as the 20th century progressed, this Diceyan consensus gradually began to be called into question. The parliamentary restraint needed was not always forthcoming. For example, at various periods parliamentary legislation imposed substantial constraints upon civil liberties in areas such as national security and counter-terrorism, trade union activity, and freedom of speech and the press. The wide-ranging discretionary powers enjoyed by public authorities were also prone to abuse, especially when it came to colonial governance in the British empire, and to the treatment of immigrants, minorities and other groups lacking political power even within the home islands.

From the late 1960s on, this ‘legacy’ state of affairs came under increasing criticism from civil society organisations campaigning in the field of law reform – such as Justice, Charter 88 and Liberty (then called the National Council for Civil Liberties). In Northern Ireland, during the years of the armed conflict between 1969 and 1995, agents of the state were clearly involved in widespread human rights abuses. Taken together with growing concerns about the treatment of ethnic minorities and other vulnerable groups within British society, these developments dealt further blows to any lingering complacency about how liberties and rights were protected within the UK. The rolling back of the UK welfare state that began in the 1980s, combined with the bitter controversies generated by the trade union conflicts of that era, also helped to erode confidence in the status quo.

The political momentum in favour of reform was also amplified by the emergence of the international human rights movement in the wake of the Second World War. As the language of human rights gained in popularity, states committed themselves to respecting an ever-growing range of fundamental rights. Beginning with the European Convention on Human Rights (‘the Convention’) in 1951, the UK ratified a variety of UN and Council of Europe treaty instruments setting out a range of binding human rights standards. Many of these commitments became the focus of civil society activism, and began to influence policy-making across a range of different fields. However, the ever-increasing salience of ‘rights talk’ also began to highlight areas where UK law and policy fell well short of established human rights standards.

In this respect, the civil and political rights set out in the Convention and the interpretation given to these rights by the European Court of Human Rights (ECHR) in Strasbourg became particularly influential. Over time, the Court’s jurisprudence established a floor of minimum standards that all European states were expected to respect. And, from the early 1970s on, judgments of the Strasbourg Court began to expose the existence of gaps in human rights protection in UK law. As a consequence, the Court’s jurisprudence resulted in significant changes being made to UK law in areas such as freedom of expression, privacy, freedom from discrimination, freedom from inhuman and degrading treatment and the right to fair trial. However, this also drew attention to the lack of a domestic counterpart to the ECHR, and the absence of any legal mechanism within British law which could perform the rights protective function being played by the Strasbourg Court.

The development of the European Union’s equality law, as interpreted and applied by the separate Court of Justice of the EU (CJEU), had a similar impact, highlighting the gap that often existed between rhetoric and reality when it came to the UK’s commitment to principles of equality, and to non-discrimination more generally. Other areas of human rights law also brought into focus new shortcomings in the UK’s track record, in particular when it came to the positive obligations imposed upon the state to take action to protect vulnerable individuals and groups at especial risk of harm – such as children, persons with physical and mental disabilities, refugees and migrants, and the homeless.

All of these factors contributed to fuelling growing disenchantment with the UK’s historic approach to human rights issues, and in particular with the lack of any substantial legal human rights protection. In response, British courts began in the early 1990s to identify the existence of a limited set of ‘common law rights’ such as freedom of expression and the right of access to courts. They now interpreted legislation as subject to a presumption that Parliament did not intend to permit public authorities to violate these common law rights, unless the statutory text contained express or clearly implied provisions to that effect.

However, the major shift in rights thinking was a political one. In 1995 a newly formed (and evanescent) group (the Labour Rights Campaign) circularised Labour constituency parties with a model resolution calling for the incorporation of the European Convention on Human Rights into UK law. This made it onto the final Conference agenda, and was carried overwhelmingly, becoming official Labour policy, and attracting continuing elite support within the party. By 1997, when the Labour Party returned to power after 18 years of being in opposition, the political climate was ripe for reform – which cleared the way for Parliament to enact the Human Rights Act (HRA) in 1998. Piloted through by Lord Irvine (but almost ignored in Tony Blair’s autobiography) the Act qualifies as one of the most significant constitutional innovations since the establishment of the UK’s modern democratic structures.

The UK’s current system of legal rights protection

The HRA incorporated the key rights set out in the European Convention on Human Rights into UK law and made it possible for individuals to sue public authorities when these rights are violated. It thereby introduced for the first time a comprehensive form of ‘rights review’ into the British legal system. The Act also set out to strike a delicate constitutional balance – by leaving parliamentary sovereignty intact, while making it possible for courts to play an active role in protecting human rights.

A section of the Act [s.6(1) HRA] imposes a duty on all public authorities (aside from Parliament) to act compatibly with Convention rights. If a public authority violates a Convention right, then a court can award the victim of the breach a ‘just and appropriate’ remedy. The courts nevertheless cannot set aside parliamentary legislation (unlike the case with EU law). This leaves Parliament with the final say when it comes to determining the law as it relates to human rights issues. But the courts are required to interpret primary and secondary legislation under one section [s.3 HRA] ‘as far as possible’ so as to maintain conformity with Convention rights. Alternatively, where that is not possible, under another section [s.4 HRA] the courts can issue a non-legally binding ‘declaration of incompatibility’, stating that the legislation in question is incompatible with the Convention. Ministers and Parliament are under no (legal) obligation to respond to such a declaration, beyond the political embarrassment involved. But it was designed to draw Parliament’s attention to the existence of a situation of incompatibility with the UK’s human rights obligations under the Convention – potentially resulting in a fast-track change of the law, if the politicians agree.

The HRA scheme of rights protection was designed to work with the grain of Britain’s constitutional traditions, rather than against it. It preserved parliamentary sovereignty while attempting to ensure that Convention rights will nevertheless ‘ exert a magnetic force over the entire political and legal system ’. Furthermore, since coming into force in 2000, the machinery of the Act has by and large functioned according to its purpose. Its provisions have enhanced awareness of rights in government, while also making it easier for individuals to challenge national laws and practice which infringe their rights.

For example, decisions by the UK courts applying Convention rights in line with the HRA framework have reformed defamation law by extending protection for freedom of speech, enhanced the rights of patients undergoing mental health treatment, granted new rights to unmarried would-be adoptive parents in Northern Ireland, and clarified the rights of persons with serious disabilities. Furthermore, certain major legislative reforms, including the Mental Health Act 2007, the Coroners and Justice Act 2009 and the Protection of Freedoms Act 2012, were passed partially in response to HRA judgments – which had identified problems with the justice and fairness of existing laws.

The legal protection afforded by the HRA has been complemented by other institutional structures. For example, the Westminster Parliament has established a Joint Committee on Human Rights (JCHR), composed of members from both the Commons and the Lords, which scrutinises the human rights impact of legislative proposals and existing law. Outside of Parliament, the official Equality and Human Rights Commission has been established to promote the UK’s compliance with human rights and non-discrimination. Furthermore, all the devolved authorities, including the Northern Irish and Welsh Assemblies and the Scottish Parliament, are required to comply with Convention rights by virtue of specific provisions set out in the devolution statutes. This limit on the powers of the devolved authorities reflects the assumption underlying the HRA that Convention rights constitute a floor of legal rights protection that all public authorities should respect: it also demonstrates the extent to which rights protection has been woven into the fabric of the UK constitution in the wake of Labour’s constitutional reform agenda of the late 1990s.

Other statutes, such as the Freedom of Information Act 2000 and the Equality Act 2010, have also come to play an important role in protecting rights. In particular, the 2010 Act prohibits public authorities from discriminating on the basis of race, sex, disability and a range of other grounds and requires all public authorities to give due regard in the performance of their functions to the need to eliminate discrimination and promote equality of opportunity. The ongoing development of the ‘common law rights’ jurisprudence by the superior courts has also contributed an additional layer of legal protection, highlighted by the UK Supreme Court’s recent finding in R(Unison) v Lord Chancellor that the imposition of employment tribunal fees had breached the common law principle of access to justice.

Outside of the legal context, human rights values attract substantial support – in particular from civil society groups. They also have attracted a certain degree of buy-in from many public authorities, even if the extent of this can vary considerably. UK foreign policy remains committed to promoting respect for the international human rights architecture, and most mainstream UK political voices endorse the importance of rights – in the abstract, at least.

Challenges to the legitimacy of UK human rights protection

Yet real problems remain with the protection of human rights in the UK. Legal rights protection mechanisms such as the HRA focus on core set of civil and political rights. Other types of human rights – in particular socio-economic rights – lack substantive legal protection, with the majority of the UK Supreme Court confirming in R (SG) v Secretary of State for Work and Pensions that unincorporated human rights treaty instruments do not form part of UK law. In many areas – in particular the spheres of immigration control, national security/counter-terrorism, freedom of association and speech, and the treatment of persons with mental disabilities and other vulnerable groups – UK law has been the frequent subject of criticism from human rights expert committees at the UN and the Council of Europe.

Furthermore, the manner in which the ECHR and HRA serve as the keystones of the current British system of legal rights protection has come under sustained political attack (from the right or conservative forces) over the last few years. A right-wing press narrative has developed that portrays human rights adjudication as ‘fetishising’ or being excessively concerned with the rights of minorities at the expense of the public interest. The Hirst (No. 2) decision of the European Court of Human Rights in Strasbourg on prisoner voting rights attracted considerable political hostility , as have judgments by the EU and UK courts which have imposed constraints on the power of ministers to deport non-nationals. Calls have been made for a fundamental re-think of the UK’s relationship with the Strasbourg Court, and by extension with the Convention/HRA scheme of rights protection more generally. For example, Lord Hoffmann in 2009 suggested that an international court like Strasbourg lacked the ‘constitutional legitimacy’ to impose its interpretation of the abstract rights set out in the text of the Convention on national parliaments and courts, and attacked what he saw as expansionist tendencies within the jurisprudence of the Court. Leading politicians and conservative think tanks have voiced similar views , expressing concern in particular that the HRA and ECHR unduly extended judicial power at the expense of political decision-making.

In turn, there has been a pushback against many of these claims. NGOs, academic commentators and political figures ( even liberal Conservatives ) have defended the HRA and the Strasbourg Court’s jurisprudence. They argue that its ‘living instrument’ interpretative approach allows the Court to maintain the integrity of its case law by ensuring that it reflects contemporary moral and social understandings of the core content of human rights. The argument has also been made that the UK’s membership of the ECHR has been a positive force for good, helping to enhance respect for human rights and providing an important safeguarding function in the context of Northern Ireland. Supporters of the legal status quo also make the case that the ECHR link and the provisions of the HRA is wholly compatible with the UK’s constitutional values, including the principle of democratic self-governance as reflected in the doctrine of parliamentary sovereignty.

Despite this, critics of the HRA continue to argue that radical reform is needed. Important elements of the Conservative Party in particular support repeal of the HRA and its replacement by a ‘British Bull of Rights’, which would reduce the influence of Strasbourg on UK law and limit the existing scope of judicial protection of rights in areas such as national security and immigration control. The Prime Minister, Theresa May, has even suggested that serious consideration should be given to the UK leaving the European Convention system of rights protection.

However, formidable political obstacles lie in the way of any such radical reform. The devolved governments remain very hostile to any tinkering with the HRA, which would require adjustments to be made to devolved governance arrangements – and, in the case of Northern Ireland, might breach the terms of the Belfast Agreement 1998. Any move on the part of the UK to withdraw from the ECHR is likely to meet stiff diplomatic resistance from other European governments. Furthermore, any attempt to repeal the HRA is likely to generate substantial legal uncertainty, and to trigger considerable political push-back within the UK.

All of these factors mean that Conservative Party ambitions at various times and in varying strengths to amend/repeal the HRA have thus far not been translated into concrete legislative proposals. However, it remains to be seen how this situation will play out in the future. Brexit is already reshaping important elements of rights protection in the UK. The EU (Withdrawal) Act 2018 gives sweeping powers to the UK government to amend or repeal existing legislation/regulations which give effect to EU law. Many observers fear that these powers could be used in the future to undermine the protection currently afforded by EU law in areas such as equality law, labour law and migrant rights. Furthermore, the international climate has grown much more hostile to human rights values more generally, with the rise of aggressive populism (especially nationalist-based) and majoritarian/anti-migrant perspectives in many different states. These trends also surface regularly in British political debates, making the future of human rights protection in the UK look very uncertain.

Conclusions

Once established on the statute books bills or charters of rights have mostly tended to become more and more embedded over time in the thinking and operations of the countries involved. The longer that they can endure and operate, the more difficult it becomes for their critics or opponents to abolish or replace them. The inaction so far on earlier Tory pledges of a ‘British Bill of Rights’ instead of the HRA since 2010 might be evidence of such an effect. And the bedrock of support for human rights amongst younger age groups, intellectual opinion-formers and wide swathes of civil society could yet provide a platform for further expansion of existing rights protection in the future, in particular in areas such as socio-economic rights where the UK currently falls short. This is also the area highlighted most by the Brexit process, with its polarising impacts on UK society. Potentially, then, repeal of the HRA or withdrawal from the ECHR may fall off the political agenda. In fact, the Brexit process may actually serve to highlight the importance of legal rights protection, and to strengthen support for the status quo accordingly.

However, human rights law and concepts remain vulnerable to political attack – especially when they seem to protect anti-social minorities like terrorist suspects, or unpopular minority groups, like migrants. Right-wing populist political movements, and some sections of the press, with their intense anti-immigration focus, have created a political climate where rights risk being swept away to placate nativist sentiment. For now, the place of legal rights protection within the UK’s constitutional culture remains uncertain. Much may depend upon the political fall-out from EU withdrawal, and how UK society responds to the current crisis of neo-liberalism.

This is an extract from our book, The UK’s Changing Democracy: The 2018 Democratic Audit , published by LSE Press. You can download the complete book here , and the individual chapter  here .

Download the book from LSE Press

About the author

Colm O’Cinneide is Professor of Constitutional and Human Rights Law at UCL.

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The Politics Shed- A Free Text Book for all students of Politics.

Collective Rights also known as Group rights are rights held by a group as a whole rather than individually by its members . This can be applied generally to society (See Venn Diagram)- i.e. the right to security 

Or to specific groups i.e. trades unions , ethic  or gender groups. (see case study)

individual rights also called human rights are rights held by  all people as individuals regardless of their group identity.  

Collective and Individual Rights

How well are Rights protected in the UK?

The Joint Committee on Human Rights   

Human Rights Act  

There is  a tension between our rights as individuals and  the collective rights of society. One of the demands made on governments is to balance the needs of both.  This is particularly seen after the terrorist attacks on New York, the Iraq War and the rise of extremist terrorist groups, several civil liberties groups, such as Liberty, have argued that the balance has shifted too far away from the individual to the government and that this has led to the erosion of individual civil liberties.

Rights are often linked to obligations which can be thought of as the rules that each person needs as they relate to other people within the wider human community . People have rights to certain basic provisions and services; meeting these needs places obligation or responsibilities on others. The collective rights shared by everyone in a society often require obligations placed on the individual. i.e. My freedom of speech requires an obligation to tolerate other's freedom of speech and to use my freedom responsibly. See John Stuart Mill 1806-73 and his 'harm principle'

Lee v Ashers Baking Company (2018)

This case  is a good example of the tension between collective and individual rights. Gareth Lee ordered a custom-made cake from Ashers Bakery with a picture of Bert and Ernie from the television programme Sesame Street and the headline ‘Support gay marriage’. The bakery refused to bake the cake as the message on it conflicted with their views as Christians.

Eventually, the case reached the Supreme Court, where the bakery’s right to refuse to bake the cake was upheld. This was on the grounds that their refusal to ice ‘Support gay marriage’ was not discriminatory since they were being asked to produce a political slogan with which theyprofoundly disagreed as Christians.

  Case Study Shamima Begum     This case illustrates the tension between individual rights- and the collective rights of society.

Individual rights versus the collective rights of the state.

The biggest conflict arises though between individual rights and the collective rights expressed by the state such as national security, public health and keeping the public safe. These clashes often pit the government, backed by the will of those who elected them, against individual rights and the courts are left to resolve the dispute. This often brings the courts into direct conflict with the government and according to critics could put the safety of the country at risk and undermine the trust of the public in the legal system.

Individual rights have come into conflict with the priorities of government in four main areas:

1. Sentencing laws: In Vinter and Others v the United Kingdom (2013), a case involving convicted murderers Jeremy Bamber, Peter Moore and Douglas Vinter, the ECtHR ruled that for a life sentence to remain compatible with Article 3, there had to be both a possibility of release and a possibility of review. Former Justice Secretary Chris Grayling said it was this case that led him to propose a new British Bill of Rights to replace the HRA to ensure that UK Courts and Parliament should have the final say in these matters.

2. Treatment of prisoners: In Hirst v UK (2005) the ECtHR ruled that a blanket ban on prisoners voting violated Article 3 in a case that David Cameron described as making him feel physically ill.

3. Terrorism: This has perhaps been the most controversial area of all, especially in light of the perception of an increased terrorist threat since 9/11. A and others v Secretary of State for the Home Department (2004), known as the Belmarsh case, saw the Law Lords rule that the Labour policy of indefinite detention of foreign terror suspects without charge broke the Human Rights Act. The court ruled that laws like this were ‘the real threat to the life of the nation’. Charles Clarke, the Home Secretary, did not release the suspects until the following year, having passed new legislation that allowed him to place the suspects under control orders that impose strict restrictions on suspects, including electronic tagging and limits on who they can meet.

  (Abu Qatada) v UK (2012), the ECtHR ruled that the radical cleric Abu Qatada couldnot be deported back to Jordan as it was believed evidence obtained using torture would be used in the case against him, contravening his right to a fair trial. The verdict angered the Home Secretary, Theresa May, and the PM, David Cameron, while also drawing the anger of the mainstream media and public opinion. Theresa May eventually agreed a new treaty with Jordan in 2013, guaranteeing a fair trial and Abu Qatada was deported the same year.

4. Right to privacy and family life versus the need to protect others . In S and Marper v United Kingdom (2008), the ECtHR ruled that the blanket retention of DNA profiles taken from innocent people posed a disproportionate interference with the right to private life, in violation of Article 8 of the ECHR. The Home Secretary, Jacqui Smith (Labour), was disappointed in the ruling, arguing that keeping the fingerprints and DNA profiles was vital to fighting crime. In 2010, the case of Aso Mohammed Ibrahim triggered an angry response from the PM David Cameron and was highlighted by the Daily Mail in its campaign against the HRA. In 2003, Also Mohammed Ibrahim knocked down and killed a young girl in a hit and run. Seven years later, an immigration tribunal turned down the application to deport him under Article 8, as in the intervening seven years he had married a UK citizen and his family also consisted of two children and two stepchildren. 

Organizational group rights

T he rights of groups based upon the shared characteristics or interests  identifies discreet organizations or groups, including nation-states, ( right of self determination ) trade unions, corporations, trade associations, chambers of commerce, (rights to strike , collectively bargain or fair competition) specific ethnic groups, ( cultural protection or recognition of particular grievances , affirmative action ), and political parties. (equal ability to participate in politics)  such organizations are accorded rights that are particular to their specifically stated functions and their capacities to speak on behalf of their members..

Case Study:  The right to strike.

Trade Union Act 2016, introduced new restrictions on trade unions and their members as to how and when they could take industrial action, fund political parties, and conduct their duties , which required strike mandates in these services to have the support of at least 40% of those eligible to vote, as well as a majority of those voting.  

  The Strikes (Minimum Service Levels) Act (2023) the Act replaced the  Transport (Minimum Service Levels) Bill introduced earlier in 2023. The new Act extends to health services, fire and rescue services, education services, nuclear decommissioning, and border security, as well as transport. The policy aims to limit the impacts of strike action on the lives and livelihoods of the public. It seeks to strike a balance between the right of unions and their members to strike with the need for the wider public to be able to access key services.  This Bill allows ministers to dictate levels of service that must be maintained in a range of key sectors when industrial action takes place. Individual workers will be forced by employers to turn up to work on strike days by naming them on work notices. If a worker fails to comply, they lose their protection against unfair dismissal. If a union fails to force those named members to break the strike, they too face severe financial penalties .  

It proposes to delegate to Business Secretary the power to set out all the relevant law in regulations.  

' The ability of workers to take strike action is an integral part of industrial relations, however, this should not be at the expense of members of the public'. Rail Minister Huw Merriman 2023

The Labour Party has pledged to scrap both  Acts within its first 100 days of government.  

Lord John Hendy's speech in response to the passing of the Strikes (Minimum Service Levels) Bill in the House of Lords on Thursday 20th July 2023 

John Hendy KC,  is an English barrister and politician practising in employment and trade union law. 

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The Legal Protection of Human Rights: Sceptical Essays

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Reacting to the poor record of the UK Human Rights Act 1998 and similar provisions in protecting human rights, this book explores ways of promoting human rights more effectively through political and democratic mechanisms. The book expresses ideological scepticism concerning the relative neglect of social and economic rights and institutional scepticism concerning the failures of court-centred means for enhancing human rights goals in general. Criticizing the ‘juridification’ of human rights through the transferring of the prime responsibility for defining human rights violations to courts and advocating the greater ‘politicization’ of human rights responsibilities through such measures as enhanced Parliamentary scrutiny of existing and proposed legislation, a group of twenty-four human rights scholars present a variety of perspectives on the disappointing human rights outcomes of recent institutional developments and consider the prospects of reviving the moral force and political implications of human rights values. Thus, one chapter recounts the Human Rights Act failures with respect to counter-terrorism legislation, another charts how the ‘dialogue’ model reduces parliaments' capacities to hold governments to accountable for human rights violations, a further chapter considers which institutions best protect fundament al rights, and another chapter reflects on how the idea of human rights could be ‘rescued’ in Britain today. Other chapters deal with the historical human rights failures of courts during the Cold War and in Northern Ireland, the diverse outcomes of human rights judicial review, and examine aspects of the human rights regimes in a variety of jurisdictions, including Finland, Sweden, New Zealand, Australia, Scotland, Canada, Europe, and the United States.

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Human rights go hand in hand with sustainable development: UK Statement at the UN Third Committee

Statement by Alex Berelowitz, Second Secretary Human Rights at the General Debate of the UN Third Committee.

Almost eighty years ago, the UN Charter established the three founding pillars of the UN system: peace and security, development and human rights.

As our Prime Minister said before the General Assembly, one of these – human rights – speaks to the very essence of what it is to be human.

We have made many advances in the years since the Universal Declaration of Human Rights.

But we cannot ignore the challenges we now face.

Widespread conflict and violence, misuse of new technologies, entrenched inequality, rollback of women and girls’ rights, climate vulnerability, and – all too often – downright impunity where power is abused.

In seeking solutions we must have human rights and the rule of law front and centre. As all member states agreed in the Pact for the Future, human rights are key to meeting the needs of everyone – especially the most vulnerable.

This includes women and children in the Occupied Palestinian Territories and Lebanon.

The humanitarian implications of the conflict are devastating and compounding an existing crisis in Lebanon.

We remain deeply concerned at the escalation of violence, the number of deaths and injuries, the displacement of families from their homes, and unacceptable attacks on UN Peacekeepers.

We call for an immediate ceasefire, and the release of all hostages in Gaza and the rapid provision of humanitarian aid into Gaza and Lebanon.

Diplomacy, not violence, is the way to achieve peace, stability and security across the region.

In Ukraine, Russia continues to disregard the UN Charter through its illegal invasion.

Many Russian atrocities amount to war crimes. Russia’s attacks on energy infrastructure, as well as the widespread and systematic use of torture against Ukrainian POWs are beyond reprehensible. We must hold perpetrators to account.

With conflict driving most of the world’s humanitarian needs, the UN’s role in independently monitoring and documenting human rights abuses and violations is more critical than ever.

We welcome the Human Rights Council’s recent renewal of the Fact-Finding Mission in Sudan. While international attention is on the Middle East and Ukraine, a brutal war has displaced over 10 million people, with atrocities carried out by both warring parties.

But in non conflict situations too, human rights are under threat.

Two years after the Office of the High Commissioner for Human Right’s Assessment on Xinjiang, China continues to persecute and arbitrarily detain Uyghurs and Tibetans, restricting civil society and independent media, and targeting human rights defenders and lawyers.

We again call upon China to implement its OHCHRs recommendations

The use of the death penalty in Iran has also reached a critical level – we cannot ignore politically motivated executions of protesters, dissidents, and juvenile offenders.

With so many global challenges we must recommit to collective action underpinned by responsible global leadership.

In 2025 the United Kingdom will stand for election to the Human Rights Council. We will do all we can to advert greater conflict, instability and injustice. 

Realising human rights goes hand-in-hand with sustainable development. But that too is throttled in places like Afghanistan, where we have seen a wholesale regression of the rights of women and girls. Banned from education and employment, with numerous restrictions on their presence in public spaces.

And in Syria we have seen the targeting of girls, subjected to forced marriage, and forced to take on increased care-giving responsibilities.

We will not progress on sustainable development if women and girls are denied their human rights.

Let us recommit, together, to the UN Charter and Universal Declaration and continue to strive for a world where nobody is left behind.

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We Had to Leave Our Home to Protect Our Trans Daughter: 'Trans People Are Human Beings' (Exclusive)

Author and advocate Abi Maxwell explains her fight against anti-trans bills in her home state, and what finally made her family decide they had to flee

Kate Criscone; Knopf

This past July, my daughter and I flew across the country, from New Hampshire to California, and set about building a new life. My husband met us at the airport. We hadn’t seen him in a few weeks; he’d driven his car across with our dog and cat. 

Originally, we had thought we’d caravan — one car following the other, a chance for the three of us to see the country. But then we’d opened the map: mile upon mile of land where our daughter did not have basic human rights. I shipped my car and booked a flight. 

“Do you really have to do that?” my mother asked, when I called to tell her. “How in the world would anyone ever even know she’s trans?” 

It was the same question my daughter had asked me a few weeks earlier, when I’d sat her down to talk to her about the legislation sweeping our state and rewriting our lives. I don’t like to talk about politics with my daughter; she’s only 12, and she has to go to school, and interact with all kinds of people. It’s hard enough for adults to navigate our polarized country. But she — her actual, physical self — has been identified as a political issue. There’s only so much I can shield her from. 

Five years ago, when my daughter was just shy of her seventh birthday, our small New Hampshire town erupted in school board fights about her. Neighbors and strangers came out to stand at the podium and claim that she — a child who still sat in a booster seat — was a threat to our community. We kept our curtains closed. At school, classmates constantly told our daughter that she wasn’t a girl and wasn’t allowed to change her name.

They misgendered and deadnamed her and, because the superintendent had made a rule that the word ‘transgender’ could not be used in the classroom setting, the teachers were powerless to educate the students to stop the bullying. Eventually, the ACLU and GLAAD had to get involved and we had to move. We went to a nearby city, because it was the early days of the pandemic and we couldn’t find new jobs, and more importantly because the New Hampshire governor — the very same one in office today — had just signed a nondiscrimination bill into law, meaning (we believed) that at least in our state, our daughter had equal rights.

That move took place in the summer of 2020. At the time, despite what we had been through in our town, we were totally unfamiliar with the state-level anti-trans legislation that was about to spread like wildfire across our country. A sports ban had recently passed in Idaho, but it hadn’t gone into effect yet, and its prospect seemed so ludicrous—an entire state banning certain children from kindergarten onward from joining sports? I’d had no idea that the terrorization we’d endured in the home my grandparents had lived in, the town my father had been raised in, the county my family had been in for hundreds of years, was about to unfold in state legislatures across the country. 

That winter of 2021 — the first in our new home — I found myself embroiled in something that I’d been privileged enough to never really notice or understand before: the state’s annual legislative session, and with it the horrendous and impossible act of explaining in three minutes or less why my child’s life depends on the votes of absolute strangers. 

I testified against two New Hampshire bills that winter, one that would ban my daughter from sports, and the other that would ban her medical care and criminalize her doctors and parents in the process—an act that, in its worst iteration, could end up with our daughter being removed from our home and forced to live as a boy. My hair turned gray and I suffered migraines; meanwhile, my husband woke at all hours, panicked that our new home had so many doors. When strangers came to find her, how could he possibly keep them out?

It was a crazy thought, but it also seemed rooted in reality; just one year before, a man we didn’t know had stood at a podium in our former town and announced to the school board that he wanted to find our child, to scoop her up and bring her to a loving home. How far would people like him go? 

That year, the anti-trans bills that I’d testified against were stopped, meaning that at least for the time being, our daughter did not lose her rights.

The following year, in the winter of 2022,  my daughter heard on NPR that the governor of Texas had issued a directive for families like ours to be investigated for child abuse. She was nine years old, all dressed for school, buckled in and waiting for me to finish scraping the ice off the car. She wasn’t naive to discrimination, but she also wasn’t aware of how widespread and dire the situation had become. That winter, I had to really explain it to her — the bathroom bans, the sports bans, the medical bans that were on the rise across the country.

Kate Criscone

The anti-trans bills were in New Hampshire again, too, and I had to explain to my daughter why I was too tired to cook dinner, too tired to play a game. 

Her dad and I fought against four anti-trans bills in the New Hampshire legislature that year. As with the previous year, one of the bills threatened our daughter’s medical care and one threatened her access to sports. Another bill aimed to remove my daughter and all trans youth from the nondiscrimination law that had passed just a few years earlier; and the final bill sought to repeal the state’s ban on conversion therapy. I would wake in the night terrified, electrical volts radiating through my body, panicked that the stress of fighting for my child would kill me — literally stop my heart — and if I died, how could my husband possibly protect her alone? 

Again that session, the bills in our state were stopped. We were awash in relief, but we were also not fooled. My husband had started to envision himself as a human shield, and I saw myself holding my finger in a dike, hopelessly trying to block the flood aimed at my child. The dam had already broken in nearly half the country; banning transgender kids from sports and medical care was becoming the norm.

Our daughter was growing up, and this was the water she was swimming in; she was learning to expect that people would not accept her as a human being, and by fifth grade she had panic attacks in the school parking lot before getting out of my car. Inside the building, she retreated into a thick shell, unable to work, unable to interact. What else would be the result, when a child has become the center of a political battle and is left alone to discern whether every single person she interacts with accepts her most basic self?

Never miss a story — sign up for  PEOPLE's free daily newsletter  to stay up-to-date on the best of what PEOPLE has to offer , from celebrity news to compelling human interest stories. 

The legislative session of 2023 brought four more anti-trans bills to New Hampshire. The most threatening to our lives included yet another bill to criminalize our daughter’s medical care; a massive bill that would ban not only her medicine but also ban public schools from affirming or educating about LGBTQ+ youth and re-legalize conversion therapy; and, finally, another bill to block our daughter from sports by removing her from nondiscrimination protections.

My daughter had joined a school ski group by then, and I’d been amazed to see how it helped her thrive. The data tells us that sports improve nearly everything in a child’s life, from grades to social skills to mental health, but seeing it in action still felt profound. Previously, when she fell, she would get angry, slam her poles on the ground, cry, and beg to go home. Skiing with a group of peers taught her to get right back up and try again. 

She and I would ski together at night, when the high school team practiced. As we rode the chairlift and watched the racers below, I’d point and tell her that I used to race like that, sometimes on that very same trail. She’d ask me if she could join the team when she was old enough. I’d tell her that of course she could, knowing that I would have to work so hard to make my words true. 

That winter, I once again testified against the state’s bills. Fragments of them all still come to me in the night: a legislator announcing that she wants to hang the skeletons of trans children from the ceiling to prove that they are different. Another legislator asking a teenage girl who was missing school in order to testify for her right to continue on her soccer team—where not a single teammate even knew she was trans—to please state her weight. 

Once again, the bills in our state were stopped that year, but then came the legislative session of 2024. Eighteen anti-trans bills were filed in the state of New Hampshire.

Our daughter was in middle school by then, where kids threw around anti-LGBTQ+ hate speech and wore Make America Great Again t-shirts. She could scarcely make it through a day–and often, she didn’t even go. Her dad and I weren’t sure it mattered. If the bills passed, we wouldn’t send her anyway–not to a school where she couldn’t use the girls’ bathroom, where she couldn’t join a team, where it was illegal for her teachers to talk about who she was.

And anyway, how could her dad and I even worry about school when a medical ban had passed in half the country? This time around, we were up against multiple medical bills in our state. One of them would render us and her doctors felons if we still found her care. Its passage no longer seemed impossible; six states had passed a similar bill. 

It was mid-March when I got a text message from my mother. She wanted to know if I’d heard the news–the New Hampshire House had voted to ban trans girls from sports. 

Over the years, I’d wondered if we would really leave the state when a sports ban came, or if we would wait for a medical ban to kick us out. But I read that text and I knew. If we meant to give our daughter a fighting chance in the world, we had to go. I got up and just started throwing our stuff in piles: keep, get rid of. 

At first, as I gave away my belongings, I lied to my daughter. I told her I was doing spring cleaning, because how to explain to a child that her home state was about to memorialize her bullying into law? Eventually, I had to come clean. I started the conversation with the impending sports ban, and that’s when she asked the same question my mother had asked: How would anyone ever even know? 

When my mother had asked me that, I’d lost my temper. “What if you had to drive through a state where you knew it was illegal to use the bathroom?” I’d yelled. “What if we get in a car accident and she needs medical care?” 

I was kinder when my daughter asked the question. 

“What?” she’d cackled. “Are they going to inspect us all at the top of the ski trail?”

I did not tell her that the law did include a right to medical inspection. I just told her the truth: the fact that she is trans is out there, because she is out. It’s in her school file, and because her dad and I have been fighting for her rights since she was six, it’s on the internet. She would be banned from joining her ski team. 

On Friday, July 19, 2024, when the New Hampshire governor signed three anti-trans bills into law, my family finished unpacking in our new apartment in California. Most of the moving van had been filled with our daughter’s things; we’d paid nearly $5,000 to move her Legos, Nerf guns and stuffed animals across the country, because it seemed like a small consolation prize — You got kicked out of your home, but hey, you get to keep all these toys! 

My daughter’s started middle school in California now. For the first time in her life, she’s safe to be herself. She, like her dad and I, have started to have an odd feeling that takes us a moment to name. Happiness. We want to be in the world again. We want to be alive.

Yesterday was different, though. I had that same old exhaustion, that sense that a poison coursed in me. My daughter could tell, and she wanted to know why, so I told her that I was trying to write this essay, trying to show in 2,000 words or less why trans people required rights.   

“That sounds easy,” she said. “I could do it in five.” 

I asked her what she’d say.

“Duh,” she said. “Trans people are human beings.” 

Abi Maxwell's new book, One Day I'll Grow Up and Be a Beautiful Woman: A Mother's Story , is available now, wherever books are sold.

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