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.
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.
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.
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.
