Does the Human Rights Act apply to uncanny things?
In a brief but enjoyable tangent while developing Come Bargain With Uncanny Things, I had reason to consider what legal rights applied to (fictitious) supernatural beings in the UK - specifically, the titular fey-like Uncanny Things, who are bound and compelled by magic as the audience wishes.
TL;DR: I don’t think that Uncanny Things could claim rights under the Human Rights Act, but might be protected by animal rights legislation, with interesting side effects from upcoming bills.
The UK has no written constitution, but rather a set of conventions and different bits of legislation that collectively act as a constitution (see David Allen Green’s numerous informative blogs on the subject).
However, as a human being I have certain rights that the state cannot take from me (in principle, at least). And while it is primarily idleness that motivates this leap, the key bit of legislation that defines those fundamental rights is the Human Rights Act (HRA) of 1998.
In it, the 1950 European Convention on Human Rights (ECHR) is given legal force in the UK, including such things as a right to life (Article 2 of the Convention), freedom from torture (Article 3), and slavery or servitude (Article 4).
However, the UK’s HRA does not actually define what it means by ‘human’. Where it refers to those to whom the Act might apply, it uses ‘persons’ - which, as far as I can tell, means ‘anybody who can claim legal personhood’, which theoretically can include animals (ish) and rivers. While companies can claim ‘juridical personhood’, the HRA presumably intends to refer to ‘natural persons’ i.e. what we usually refer to by ‘person’.
I have, frankly, failed to find any specific bit of legislation that defines who gets to claim natural personhood in the United Kingdom, presumably because as the dominant species of this planet, we safely assume that the only natural persons claiming rights under the law would be human.
But what if that were not the case? What if, tomorrow, a sentient supernatural fey creature or alien arrived in the UK? What legal rights would protect it?
Whose Legal Personhood Can Be Invoked Under The HRA?
The HRA’s main function is to defer to the ECHR. Looking through the ECHR, it too mentions a bit of writing about humans (the Universal Declaration of Human Rights) as the text it aims to give practical effect to. But, like the HRA, the ECHR never defines who the rights do not apply to. Article 1 simply states that “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention,” [emphasis mine] going on in similar terms to give “everyone” the rights to be free of torture, capital punishment, slavery and so on.
Without a clear definition of who can claim legal personhood, it might be possible to argue that our fey creature could claim the protection of law, given that it is sentient.
However, at this point we finally step up to the Universal Declaration of Human Rights (UDHR), 1948. Here, at last, we find in the preamble a proscriptive sense of who can claim these rights: “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world” [emphasis mine]. Article 1 of the UDHR goes on to state that “All human beings are born free and equal in dignity and rights.”
Now, the UDHR has no legal force; it is a statement of principle rather than practice. However, I think it would be fair to say that when trying to interpret the ECHR, one could reasonably look at the UDHR and the names of both the ECHR and the HRA to conclude that all of them only applied to human beings. No mention is made of sentience as grounds to claim such rights, leaving us with a legally-purist interpretation that Uncanny Things cannot claim human rights.
As an aside: given the general jumpiness of the UK government to outsiders of our own species, it may well also seek to consider Uncanny Things as a threat. At which point, it could well derogate from the ECHR as it did in 1988 and 1989 due to the situation in Northern Ireland (and in 1952, on the grounds that education in conformity with parents’ religious and philosophical convictions might be inefficient and expensive).
Does That Mean We Can Hit It With A Crowbar [Until Legislative Reform]?
No, because the Uncanny Thing is being played by an actor.
Legally, however, there are various questions.
Assuming we can consider aliens and Uncanny Things as animals (of which more later), our first question is whether they count as domesticated (since they can be invoked by magicians) or wild (since they are not always domesticated).
If wild, they fall under the Wildlife and Countryside Act of 1981, which contains a list of creatures it protects in Schedule 5. This list does not include ‘Uncanny Things’, and so if Uncanny Things are wild, they have no obvious rights in UK law.
If domesticated, we have to consider the Animal Welfare Act (2006) (AWA).
Given that, in the fiction of the show, Uncanny Things are routinely bound by and made to do tasks by Bargainers, there’s certainly a case to be made that it applies. In which case, the Performing Animals (Regulation) Act 1925 then kicks in as well, requiring trainers and exhibitors of said animals to be registered with the local authority, who can make appropriate inspections.
Our foundational text remains the AWA. Here we get a clear legal definition straight away: Section 1, Clause 1: ‘“Animal” means a vertebrate other than man.’ Leaving aside the legislative convention that ‘man’ refer to all humanity, this then raises two biological questions:
Do Uncanny Things, aliens, or other hypothetical creatures have a spine?
Assuming an alternate evolutionary history, do they belong to the sub-phylum Vertebrae of the phylum Chordata (thanks, Clause 5!), or is such a spine an example of parallel evolution?
[Side note: biology students take heed. Clause 5 says any creature that does not meet this requirement is, by law, an invertebrate. Watch your instructors wince as you insist on this definition.]
Frankly, I have no intention of dissecting an Uncanny Thing to find out whether they have a spine, though I suspect the answers are 1: Probably and 2: No.
Fortunately, the AWA gives power to the appropriate national authority to extend the definition of animal under Section 1, Cause 4: “if the appropriate national authority is satisfied, on the basis of scientific evidence, that animals of the kind concerned are capable of experiencing pain or suffering.”
In short: if you hit it with a crowbar, and it seems unhappy, it is eligible to be protected by the AWA. Likewise, if you insult it and it seems unhappy, it should be eligible.
While our Uncanny Things, with their loathing of iron, would need to clear a few bureaucratic hoops, they can at least claim protection under current UK legislation.
What Rights Do They Have?
Section 2 allows for something to be a “protected animal” if it is under the control of man, even on a temporary basis (part b). This then leads to Section 3, by which this means that not only do Uncanny Things have more rights when they are being compelled by magic, but the damage they do is arguably the responsibility of the bargainers controlling them.
So, what are these protections?
Section 4, Clause 1 means that a (human) person commits an offence if by act (or failure to act) they cause a protected animal to suffer unnecessarily, and they reasonably knew that suffering would be a likely effect of that action or omission.
Clause 3 then explains what is ‘unnecessary’ - suffering that:
could reasonably be avoided or reduced
was not in accordance with a licence
had no legitimate purpose to benefit the animal or protect a person/property/animal
was not proportionate to the purpose of the action causing suffering
was not caused by actions that could be considered those of a “reasonably competent and humane person.”
As per Clause 4, none of this relates to the ‘humane’ destruction of animals. In 2019, exemptions were also made for animals under the control of a serving police or prisons officer in the line of duty. It would be wise for Uncanny Things and aliens to avoid joining Her Majesty’s constabulary.
Section 5 (‘Mutilation’) prohibits “interference with the sensitive tissues or bone structure” (except dogs’ tails), Section 7 covers poisoning animals, and Section 8 animal fights.
In short, our Uncanny Thing can presume freedom from mutilation, many forms of harm, and being forced to enter a fight.
However, by virtue of being classed as an animal, it also gains certain protections. Section 4, Clause 2 requires the humans controlling it to prevent unnecessary suffering; a requirement reinforced by Section 9, requiring our creature to have a suitable environment and diet to meet its natural needs and be free of suffering. This includes any lawful purpose for which it is kept - even if we wish to perform magic to make it obey us, our hypothetical fey cannot be unnecessarily harmed.
Section 10 establishes an inspectorate to monitor these rules (with powers to remove and destroy animals for their own wellbeing under Section 18), and Section 13 finally gives us rules for registration of activities involving animals. While bargaining with Uncanny Things currently has no inspectorate, it seems likely that one would rapidly become necessary to prevent them being the responsibility of the inspectorate for performing animals.
Those breaking these terms could be fined or imprisoned for up to 5 years.
This leaves us with Uncanny Things whose sorcerous masters must not only protect from harm, but actively support the welfare of. This seems untenable for our wannabe Faust - we wish to bind and control these powerful creatures, after all.
Getting Around The Act
The first, and most obvious, possibility is to permit Uncanny Things the right to be ‘natural persons’, able to enter into contracts and consent to managed levels of risk. However, doing so would cross a line that many legislators seem to feel very cautious about - extending human rights to non-human entities.
A second option would be to define what counted as ‘unnecessary’ suffering. Many cruelties might be considered proportionate to the purpose of bargaining with fey creatures, in much the same way that whipping a horse is widely accepted (from a legal standpoint). With a proper licensing body, such actions could be actively protected in law.
A third option would require the least work: to invoke Section 58 of the AWA, get a licence to do scientific research under the Animals (Scientific Procedures) Act 1986, defining any bargaining as being for an experimental or scientific purpose with unknown outcome (Section 2, Clause 1A). While the principle of ‘replacement, reduction, and refinement’ would eventually cause a problem, currently the Section 4 system of Personal Licenses should give breathing room for Faust to work out his next step.
While Uncanny Things, fey spirits, aliens, and other non-human sentients almost certainly cannot claim protections under the HRA or ECHR, any person who invokes one suddenly confers on them a degree of legal protection from suffering.
Does this matter in the show? No, it happens in a parallel world where the law has a looser hold, and (I hope) the show focuses on things of slightly more interest to a general audience.
Was it a very enjoyable way to spend a few hours? Yes.
And now, if you ever meet a fey creature, you can tell them that (legally) they’re in a better position if they do your bidding.