The Human Rights Act, the varieties of exploitation, and the myth of a purely private economy

Even in our enlightened society, we have a peculiarly narrow view of what torture is. Sometimes we refer to the broader view as noted by the Equality and Human Rights Commission:

Article 3 of the HRA protects you from mental or physical torture, and inhuman or degrading treatment or punishment, including the risk of facing such treatment through deportation or extradition to another country.

Torture has been defined in the Convention against Torture as intentional infliction of severe pain or suffering on someone, including to punish, intimidate, coerce or to get information. If you uncover instances of torture in your investigation, you should refer it to the relevant authorities as a criminal matter.

Inhuman treatment or punishment causes intense physical or mental suffering. This could include serious physical assault or psychological abuse in care settings, cruel or barbaric conditions or detention, or the real threat of torture.

Treatment may be considered degrading if it is extremely humiliating or undignified. Whether treatment qualifies as degrading may depend on its duration, its physical or mental effects and the personal circumstances, such as sex, age and health of the victim.

Cases that are not sufficiently severe to engage this right may still breach the right to respect for private and family life.

Cruel, inhuman or degrading treatment does not have to be inflicted on purpose. Inhuman treatment is considered degrading, but degrading treatment need not be considered inhuman.

The right places positive and negative obligations on public authorities, both to refrain from degrading or inhuman action or inaction, and to provide certain basic amenities.

These could include food, water, shelter, fresh air and opportunities for social interaction. When there is a threat of harm from others, it could be a duty to provide physical and emotional safety.

States are not only obliged to create an adequate legislative, administrative and judicial framework to achieve this, but also raise awareness among public authorities about their duties under the right, such as through guidance and staff training (UN Human Rights Committee General Comment No. 20).

This right is absolute. Staff pressures, lack of resources, or other competing rights, can never justify subjecting individuals to treatment that is cruel, inhuman or degrading.

— ‘The right to be free from torture or cruel, inhuman or degrading treatment or punishment: for ombudsman schemes’, by the Equality and Human Rights Commission.

Exploitation can come in many forms. It is not one thing alone — but one thing encompassing a multitude of forms and variations on the same fundamental theme: cruel, degrading, or inhuman treatment of a person or people by another person, people, or institution of some description. But if we are referring, to follow Thomas Hobbes, to ‘artificial people’, or institutions, not just ‘natural people’, or individuals, then what type of institution do we mean to invoke: public, or private?

The right to privacy certainly applies to individuals. But to apply this right to institutions seems dangerous: if institutions are wholly private entities, how can they be subject to proper public scrutiny to ensure compliance with, say, human rights laws? Perhaps they cannot. Indeed, institutions cannot be fully public without sacrificing their independence and operational autonomy. Institutions, at least, cannot be purely private — lest individuals’ own right to privacy be violated.

Immanuel Kant is often treated as a founder of the discourse of human rights, speaking of the autonomy of the human subject and their freedom to choose their own ends in life, not merely the means to attain such ends. People are people — not things. To view us otherwise is to dehumanise us and enslave us. Unfortunately, in this world, inhuman practices, sometimes encapsulated in the bundle concept of ‘modern slavery’ (or, just, slavery), endure. Such exploitation is tied to the privatisation of public life. If everyone exists to be bought or sold according to their work ethic or, alternatively, their subservience to superiors, then the modern world all but extends the slavery of the ancient world and the feudal vassalage of the medieval world. We think we are free, but we are not yet free. Only when all of us are free will we be able to speak of a world without slavery. In view of the human rights to which we are all endowed by nature and art (including the arts of law and politics), I think this is an important point to press. For freedom, as scholar Angela Davis is once quoted to have said, is a constant struggle. But once we are free, we may hope for peace. Just don’t count on it.