Civil liberties in the United Kingdom
Civil liberties in the United Kingdom have a long and formative history. This is usually considered to have begun with the English legal charter the Magna Carta of 1215, following its predecessor the English Charter of Liberties, a landmark document in English legal history. Judicial development of civil liberties in the English common law peaked in 17th and 18th centuries, while two revolutions secured Parliamentary sovereignty over the King and judges. During the 19th century, working class people struggled to win the right to vote and join trade unions. Parliament responded and judicial attitudes to universal suffrage and liberties altered with the onset of the first and second world wars. Since then, the United Kingdom's relationship to civil liberties has been mediated through its membership of the European Convention on Human Rights. The United Kingdom, through Sir David Maxwell-Fyfe led the drafting of the Convention, which expresses a traditional civil libertarian theory.[1] It became directly applicable in UK law with the enactment of the Human Rights Act 1998.
The relationship between human rights and civil liberties is often seen as two sides of the same coin. A right is something you may demand of someone, while a liberty is freedom from interference by another in your presumed rights. However, human rights are broader. In the numerous documents around the world, they involve more substantive moral assertions on what is necessary, for instance, for "life, liberty and the pursuit of happiness", "to develop one's personality to the fullest potential" or "protect inviolable dignity". "Civil liberties" are certainly that, but they are distinctly civil, and relate to participation in public life. As Professor Conor Gearty writes,
"civil liberties is another name for the political freedoms that we must have available to us all if it to be true to say of us that we live in a society that adheres to the principle of representative, or democratic, government."[2]
In other words, civil liberties are the "rights" or "freedoms" which underpin democracy. This usually means the right to vote, the right to life, the prohibition on torture, security of the person, the right to personal liberty and due process of law, freedom of expression and freedom of association.[3]
Background
Enlightenment
- Ashby v White (1703) 1 Sm LC (13th Edn) 253 right to vote cannot be interfered with by a public official
- Armory v Delamirie (1722) K.B., 1 Strange 505, 93 ER 664 right to property that you find
- Entick v Carrington (1765) right against arbitrary search and seizure; Lord Camden, quoting almost verbatim from John Locke, held that man entered society to secure his "property" (lives, liberties and estates). His principle was that the individual could do anything not prohibited by law, and the state could do nothing but that which was authorised by law.
- R v Knowles, ex parte Somersett (1772) 20 State Tr 1; (1772) Lofft 1, abolition of slavery, for "the air of England has long been too pure for a slave, and every man is free who breathes it." However, this did nothing for the colonies.
- Trials of John Wilkes
Democracy
- Slave Trade Act 1807, abolished slave trade in British Empire, following William Wilberforce led Parliamentary campaign
- Great Reform Act of 1832, enfranchising slightly more property holders, rationalising the borough and county seat system.
- Slavery Abolition Act 1833, abolished slavery in British Empire
- Bird v Jones (1845) 7 QB 742, right to liberty, freedom of movement (across bridges)
- Second Reform Act of 1867, loosening the property qualification, extending the franchise to around a third of men.
- Conspiracy and Protection of Property Act 1875, decriminalising trade union activity (freedom of association).
- Beatty v Gillbanks (1882) 9 QBD 308, the Salvation Army wanted to campaign against alcohol with the help of a brass band in Weston Super Mare. Local brewers formed a so called "skeleton army", and threatened to disrupt the march with force. The police, fearing for public order told the Salvation Army to call it off, but they went ahead. Then the police forced them, by breaking up the brass band. Field J in the High Court held that there was no right of the police to do so. The Salvation Army was associating "for religious exercises among themselves, and for a religious revival". No one could "say that such an assembly [is] in itself an unlawful one". Stopping the march would be like saying "that a man may be convicted for doing a lawful act - there is no authority for such a proposition."[4]
- Trade Disputes Act 1906, removing liability in tort for trade unions going on strike, after the House of Lords in a series of cases invented ways to bankrupt unions for any action.[5]
- Nairn v The University Court of the University of St Andrews, (1907) 15 SLT 471, 473, per Lord McLaren, it is "a principle of the unwritten constitutional law of this country that men only were entitled to take part in the election of representatives to Parliament."
- Amalgamated Society of Railway Servants v Osborne [1910] AC 87, per Lord Shaw and Lord James, any contributions by trade unions to Members of Parliament were "unconstitutional and illegal".[6] Reversed by the Trade Union Act 1913.
Post World War II
- The European Convention on Human Rights was drafted by Sir David Maxwell-Fyfe, at the time, their Chairman of the Council of Europe's legal and administrative division. Clement Attlee's accession to the Convention in 1950.
- The British Empire began granting independence to all its Colonies from India, to Africa to the Pacific.
- The last instance of capital punishment in the United Kingdom was carried out in 1964. It was formally abolished under the Human Rights Act 1998.
- Harold Wilson allows individual petitions to Strasbourg in 1968.
- Golder v United Kingdom [1975] 1 EHRR 524, the first case to arrive at the European Court of Human Rights, a prisoner who was denied a solicitor to make a (probably spurious) libel claim against a guard, was held to have had his right to a fair trial under Art.6 ECHR violated. Access to counsel and court was held to be a necessary element in the right to a fair trial, because otherwise countries could abolish courts and not be in breach.
- Ahmad v Inner London Education Authority [1978] QB 38, the case concerned the right of freedom of religion under Art.9 ECHR, and whether a Muslim man could take time off on Fridays, with pay, to go and worship at his local mosque. His case was turned down both by the Court of Appeal, and by the Commission in Strasbourg. But before it went to Europe, Lord Denning MR, famously said with regard to the Convention...
"We will do our best to see that our decisions are in conformity with it. But it is drawn in such vague terms that it can be used for all sorts of unreasonable claims and provoke all sorts of litigation. As so often happens with high-sounding principles, they have to be brought down to earth. They have to be applied in a work-a-day world."
- The Sunday Times v United Kingdom (1979–80) 2 EHRR 245, the Sunday Times wrote in its paper that distillers who made Thalidomide and were responsible for causing birth defects in many children should settle. Under the English law of contempt, meaning you should not prejudice the outcome of the legal process, the House of Lords held that the paper was liable to pay damages. By 11 votes to 9, the European Court of Human Rights held that the law violated the paper's right to freedom of expression under Art.10 ECHR.
As a result of this case the Contempt of Court Act (1981) was passed, making changes to the law of contempt of court.
Conservatives
- Police and Criminal Evidence Act 1984, allowed four days detention without trial (previously it was 24 hours).
- CCSU v Minister for the Civil Service [1985] AC 374, where GCHQ members were banned by Margaret Thatcher (also the Minister for the Civil Service) from belonging to unions. The House of Lords held that the Royal prerogative was subject to judicial review. Banning unions was within the discretion of the Minister.
- Malone v Metropolitan Police Commissioner [1979] Ch 344, Megarry VC said that the executive could do anything that was not prohibited by law (purporting to reverse Entick v Carrington). This meant that a dodgy antique dealer could not be prosecuted for handling stolen goods based on evidence from a wire tap that the police had no authority under any statute to do.
- Malone v United Kingdom (1984) 7 EHRR 14, said that UK allowing the phone tapping is in breach of its obligations under the ECHR, because there was no law that did 'indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities."[7]
- Interception of Communications Act 1985, the government's response to the ruling, allowing any phone tapping.
- Public Order Act 1986, passed in the context of widespread industrial disputes, particularly the Miners' Strike, Part II limited public processions and demonstrations by requiring 6 days advance notice to be given to the police.
- R v Secretary of State for the Home Department ex parte Brind [1991] 1 AC 696 concerning the dubbing of voices by any IRA members on television. Anthony Lester QC argued that implied in the Home Secretary's discretion must be an adherence to the ECHR's norms on free expression. This was squarely rejected by the House of Lords (Lord Ackner leading the judgment), and on appeal
- Charter 88, a liberal pressure group which took its name from the Czech Charter 77 and advocated institutional reforms modelled on the United States, was addressed by Labour leader John Smith. He promised a Bill of Rights for Britain.
New Labour
- Human Rights Act 1998, for the first time this allowed direct appeal in British courts to be made on the basis of the European Convention on Human Rights. It preserves Parliamentary sovereignty, because courts may not strike down democratically decided laws, they can only issue a "declaration of incompatibility" (s.4). Judges, when interpreting legislation, may also presume that Parliament intended not to derogate from Convention rights (s.3). It is a precondition of a claim to the Strasbourg court that a claimant has exhausted the domestic legal system's avenues for appeal. The main reason for incorporation, and justification from advocates and the Government was to save time and cost. Other countries, such as Germany and France have their own standards, but all follow and stay conformity with the ECHR. Similarly, the ECHR is drawn from the traditions of every member state, and acts as a method for maintaining minimum standards on which there is general consensus. Despite its controversy, this may be viewed as a uniquely British measure, especially given the fact that the Convention was drafted under the direction of the British government.
- Terrorism Act 2000, extended the limit to 7 days detention without charge for terrorist suspects. It also allows terrorist organisations to be banned. Sixty groups have to date been outlawed. The Act also introduced a broad definition of "terrorism" under s.1. The stop and search powers in the Act were used to search protesters at an arms trade fair in Canary Wharf, including a Ph.D. student and a journalist who took legal action as a result. The police action was held to be lawful in R (Gillan) v Commissioner for the Metropolitan Police [2006] UKHL 12.
- Regulation of Investigatory Powers Act 2000, allows the government full surveillance powers of all kinds of communication. The current rate is 30 warrants being issued a week. In the 15 months from July 2005 to October 2006, 2407 warrants were issued.
- Civil Contingencies Act 2004, allows the government, for an "emergency", to deploy armed forces anywhere in the country during peace time (cf. Bill of Rights 1689). It also allows property to be sequestrated, for an "emergency" with or without compensation anywhere (cf. Prot. 1, Art.1 ECHR).
- Serious Organised Crime and Police Act 2005, created an offence of inciting religious hatred, an advanced notification scheme for protests up to 1 kilometre from Parliament. cf Blum v Director for Public Prosecutions.
- Anti-Terrorism Crime and Security Act 2001, in response to the destruction of the NYC World Trade Center on 9/11, the government passed legislation allowing indefinite detention without trial for non-British nationals suspected of committing terrorist offences, but without enough evidence for an actual trial (cf. Magna Carta, Habeas Corpus Act 1679). When passing Acts of Parliament, under the HRA 1998 the Minister has to make a "statement of compatibility" with the Convention. What they did was to send notice of derogation from the right to a fair trial, Art.6 ECHR. Art.15 ECHR is the derogation provision, which says "In time of war or other public emergency threatening the life of the nation" a member can derogate "to the extent strictly required by the exigencies of the situation". The minister then declared when passing the 2001 Act that it was (with the derogation sent) compatible with the HRA 1998.
- A and Others v Secretary of State for the Home Department [2004] UKHL 17, the majority of the House of Lords decided that the detention without trial under the ATCSA 2001 was discriminatory to non-British nationals, and therefore incompatible under Art.14 ECHR. A declaration of incompatibility was issued under s.4 HRA 1998. Lord Hoffmann was the only dissenting judge to hold that the whole detention without trial idea was incompatible with the right to a trial under Art.6, and that the derogation was unacceptable, because there was no "threat to the life of the nation". He argued strongly that it would be wrong to suggest, with the majority's view that discrimination was the problem, that the government should be allowed to lock up all Britons alike.
- Prevention of Terrorism Act 2005, the government in response to A's case passed this allows the Home Secretary to impose control orders on any British citizen. Anybody suspected of terrorist related activities by the Home Secretary, but without any kind of trial, can be electronically tagged, monitored, be restricted from making phone calls, using the internet, be banned from certain kinds of work, can be restricted from going certain places, have one's passport revoked and be under a duty to report to the police. The control order system was held disproportionate in Secretary of State for the Home Department v JJ [2007] UKHL 45. The system was declared incompatible, because there was no derogation. However Lord Brown stated that if a suspect was left with eight hours' liberty a day, then it would have been acceptable.
- Terrorism Act 2006, following the bombings in London on the 7th of July, this legislation allows for people suspected of terrorist offences to be detained without charge for up to 28 days. The Criminal Justice Act 2003 had extended the time to 14 days. The government had initially proposed a limit of 90 days, saying this was on the recommendation of the police, and citing support from opinion polls. Opposition among MPs saw the first defeat for the Blair government; the Conservative amendment of 28 days detention without charge being accepted. The act also created a new offence of "glorifying terrorism".
- Austin v Metropolitan Police Commissioner [2007] EWCA Civ 989, Court of Appeal rejects a charge of false imprisonment and an Art.5 ECHR claim for police holding May Day protestors in Oxford Circus in 2001.
- Counter-Terrorism Bill 2008 sought to extend the number of days detention without charge to 42 days and to allow the Home Secretary to require an inquest to be established without a jury in secret if they deems it to be in the public interest, the interest of an overseas treaty partner or in the interest of national security. David Davis MP, a Conservative politician and Shadow Home Secretary at the time, resigned his parliamentary seat in June 2008 in protest over the proposed extension to detention with charge. His resignation forced a by-election, which he contested and won on a civil liberties platform. Neither Labour nor the Liberal Democrats stood a candidate.
See also
Notes
- ^ see e.g. the Praemble to the Convention, which states the Convention is there to secure "effective political democracy".
- ^ Conor Gearty, Civil Liberties (2007) Clarendon Law Series, Oxford University Press, p.1
- ^ Care should be taken with such definitions. Much more "underpins" democracy than civil and political rights. Capacity for public participation goes into the social and economic: see, e.g. Jeremy Waldron, 'Social Citizenship and the Defence of Welfare Provision' (1993) in Liberal Rights: Collected papers 1981-91, Cambridge University Press, Ch.12; Also, the language of rights, liberties, freedoms, etc, etc, is inherently vague and the divisions between different rights in various documents are inevitably meaningless (e.g. is the right to liberty different from a fair trial, and does it matter?), and simply express country's cultural and historical preferences. At the core all these things come down to the mediation of relations between people, whether for power or resources or between individuals or the state. See, e.g. Alan Gewirth, Human Rights: Essays on Justification and Applications (1982); he puts forth the formula that any right can be put in the form of X claiming right Y against Z
- ^ (1882) 9 QBD 308, 313-4; Compare now, Hammond v Director of Public Prosecutions [2004] EWHC 69 (Admin), where a homophobic preacher in Bournemouth was arrested for breach of peace after people started pushing and throwing water over him; and Redmond-Bate v Director of Public Prosecutions [1999] Crim Law Rev, where Fundamentalist Christians preaching on Cathedral steps, attracting 100 stirred up people were removed for "breach of the peace". Sedley LJ held that in contravention to Art.11 ECHR and Beatty
- ^ see, Taff Vale case, Quinn v Leatham and South Wales Mines; the first of these was the direct cause for the formation of the Labour Party: to lobby for its reversal.
- ^ Although clearly these cases are anachronistic to the highest degree and moribundly conservative, political donations by unions and business alike; see for instance the Companies Act 2006 ss.362-379.
- ^ (1984) 7 EHRR 14, 79
- ^ [1990] 1 A.C. 109, at p. 283G
- ^ Security and Privacy, The Guardian, 19 July 2001
References
- Historical
- Helen Fenwick, Civil Rights: New Labour, Freedom and the Human Rights Act (2000) Longman
- Keith Ewing and Conor Gearty, Freedom under Thatcher: Civil Liberties in Modern Britain (1990) Oxford University Press
- Keith Ewing and Conor Gearty, The Struggle for Civil Liberties: Political Freedom and the Rule of Law in Britain, 1914-1945 (2000) Oxford University Press
- General
- Conor Gearty, Civil Liberties (2007) Clarendon Law Series, Oxford University Press
- David Feldman, Civil Liberties and Human Rights in England and Wales (2002) Oxford University Press
- A.W. Bradley and Keith Ewing, Constitutional and Administrative Law (2007) Longman
- N Whitty, T Murphy, S Livingstone, Civil Liberties Law: The Human Rights Act Era (2001) Butterworths
External links
- Human Rights Act 1998
- European Convention on Human Rights
- Other
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Fundamental concepts and philosophies
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Human rights by continent
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