Human Rights and Civil Liberties

United Kingdom despite the fact that it lacks a Bill of Rights or any other formal document that guarantee the fundamental rights of an individual, it has a long history on the protection of civil liberties, dating back to the Magna Carta 1215, recognising the right to access to the courts and the right to a fair trial and based on the Bill of Rights 1689 which has as central principles, the parliamentary sovereignty, the separation of powers and the rule of law. Nevertheless, in mid-1990s, some academic commentators noticed that both the traditional methods of protecting civil liberties and the excessive parliamentary legislation were insufficiently effective as a result a high number of claims brought against UK government in the European Court of Human Rights, in Strasbourg. In response to the problem the United Kingdom faced, the Labour Government passed the Human Rights Act which received the royal assent on September 9, 1998 and came fully into force in October 2, 2000. Specifically, the Act was passed to achieve a greater effectiveness of the European Convention of Human Rights in domestic law. However, the draftsmen of the HRA does not infringe parliamentary sovereignty, therefore courts continue to judge cases according to the Acts of Parliament even if they do not comply with the ECHR. Following that, a big dilemma made governments and courts to wonder if an adoption of a Bill of Rights is needed which it would guarantee civil liberties and human rights in the way that the European Communities Act 1972 incorporates the Treaty of Rome.

MAIN PART

Although the HRA 1998 preserves the general notion of parliamentary sovereignty, undoubtedly, increased the level of protection of rights in UK and an unexpected success is obviously observed.

Firstly, section 19 requires Ministers to make a statement before the Second Reading [1] either when a government Bill is compatible with Convention Rights, (a statement of compatibility) [2] , in writing [3] or when the government wishes the House to proceed with the Bill [4] . In addition to this, under s.2, the Act enables domestic courts and tribunals to take into account the relevant case law of the European Court of Human Rights and Commission but courts are not bound to follow it. This means that the ECHR case law has more influence in domestic courts’ decisions and judgements, but is still not binding. A case that illustrates the application of s.2 of HRA is R. (Mahmood) v Secretary of the State for the Home Department [5] . The Court of Appeal held, that when scrutinising executive decisions that interfere with human rights the courts must take into account the European jurisprudence in relation to s.2.

Secondly, one of the most successful changes, in the way human rights are protected, is achieved in accordance with s.3 of the HRA. It gives the judicial power to court to interpret legislation, either primary or secondary in a way more akin to the European Conventions, wherever possible. The leading case on the application of section 3 is R v A case [6] . This case was decided according to s.41 of the Youth Justice and Criminal Evidence Act 1999 which restricted the right of cross-examination in rape cases. However, the Lord Steyn said:

“The interpretive obligation under s.3 of the 1998 Act is a strong one. It applies even if there is no ambiguity in the language in the sense of the language being capable of two different meanings…”

A more clear approach was taken by the courts in Mendoza v Ghaidan case [7] , where a provision of the Rent Act 1977 which discriminated homosexuals to succeed in tenancy was interpreted in a way which is compatible with Convention Rights and specifically Article 8 of ECHR as a result, it was held that courts must adopt a purposive approach to interpretation of legislation to ensure compliance with the ECHR. On the other hand, as Lord Woolf stated in Poplar Housing and Regeneration Community Association Ltd v Donoghue [8] , courts are not entitled to legislate because of the s.3 of the Act. Additionally, s.3 should be applied in such a way as not to alter the effect of the statutory scheme as the Court of Appeal held in Bellinger v Bellinger case [9] in which a transsexual couple brought action against the domestic law that prohibits them to get married.

But what happen what a court cannot interpret a provision of a statute in a way to be compatible with Convention rights? Under s.4 of the Act, a court can make a declaration of incompatibility drawing attention to the inconsistency between legislation and Conventions. In this way courts let the Parliament to decide whether a change in legislation is needed. However, only Higher Courts are allowed to declare an Act incompatible with ECHR and only after the minister has submitted the statement of incompatibility. Following the action of declaration of incompatibility s.5 of the Act requires courts to give notice to the Crown. The first reported case where a superior court issued such a declaration was the R (on the application of Alconbury Developments Ltd) v Secretary of State for the Environment [10] . A case concerned the procedures used by the Secretary of State in decision-making which were incompatible with the right to a fair trial (Article 6 of the ECHR). Nevertheless, on appeal the declaration was overturned because the procedures were decided to be compatible by the availability of judicial review. Further declaration was granted in A and others v Secretary of State for the Home Department [11] ; a case which led legislative changes to the provisions in the Anti-Terrorism, Crime and Security Act 2001; beneficial to transsexuals. Section.10 of the Act provides the remedial process to be followed when a statement of incompatibility is made.

Furthermore, the HRA 1998 in order to ensure compliance with the Convention placed responsibilities on public authorities which are identified in s.6. Any public authority which acts in a way which is incompatible with a Convention right will be acting unlawfully, unless required to do so by primary legislation [12] . The key case is YL v Birmingham City Council [13] , in which the House of Lords supported that the concept of a ‘core’ public authority that’s all its actions must comply with the HRA 1998. It is important to notice that the Act states that in some cases is the functions rather than the nature of organisation that they are taken into account in order to decide whether or not an organisation is a public authority [14] . Therefore, can be assumed that s.6 creates two types of public authorities; the first is an authority which is ‘public’ in relation to all its actions and the second one in relation to certain of its actions [15] . From the definition of ‘public authority’, the two Houses of Parliament or a person whose functions are in relation to parliament procedures are not included [16] . The problem arose is which factors should be taken into account in deciding whether a body is a public authority or not. In the recent case of Donoghue v Poplar Housing and Regeneration Community Association Ltd [17] , it was held that private bodies to which public authorities had delegated some of their functions are not necessarily to be held accountable to public law. However, the courts in Douglas and others v Hello! [18] case, showed their willingness to adopt a ‘horizontal effect’ in private proceedings and especially when the right to privacy (Article 8) is concerned, for which English law does not provide statutory protection.

A significant point to be highlighted is the right to a person to bring proceedings in the appropriate court or tribunal against a public authority which has acted or proposes to act in a way which is contrary to the Conventions [19] . Then, courts have the ability to declare actions of public authorities’ ultra vires, when their interference with human rights is not covered by statutory powers. Then, those actions are subject to the grounds of judicial review: illegality, irrationality, procedure impropriety as they were stated by Lord Diplock in GCHQ case [20] and later on proportionality was added [21] . Courts would let government to interfere with human rights only if it is necessary in democratic society and it is proportionate to the legitimate aim. As regard remedies, the appropriate court or tribunal, under s.8 can provide damages or injunctions when a breach of Convention rights is found.

The HRA 1998, aimed to ‘bring rights home’ [22] . It has the role to provide a higher protection of fundamental rights similar to the US Bill of Rights and the Canadian Charter on Human Rights that have higher status than other laws. It obliges public authorities to take actions that do not interfere with individual rights identified in the European Convention of Human Rights. For the first time, judges has the responsibility to consider the compliance of primary legislation with convention rights and the ability to make a statement of incompatibility if there is a contradiction between them. The principles of legitimacy and proportionality, used by courts, strengthen the role of the judges in the constitutional area and armed them with greater power to interpret legislation in a way to be compatible with conventions, an area which previously was governed and controlled only by Parliament. The incorporation of the Convention rights into domestic law provides citizens the right to challenge executive’s decision not only in the European Court of Human Rights but also in domestic courts.

On the other hand, the enactment of the Human Rights Act 1998 was only the first stage in a process of a constitution reform. Firstly, it is important to note that the HRA does not incorporate all the Convention rights into domestic law. There are still some important Articles that are excluded, such as Article 1 which obliges all the signatories to the Convention to secure the freedoms and rights identified in conventions within their jurisdiction. Moreover, despite its high status as a law, it can be amended easily like any ordinary statute. Although s.4 of the Act provides court with the right to declare a primary legislation incompatible with Convention rights, they cannot strike down an Act of Parliament; therefore an incompatible statute can still be valid. It is apparent though, that HRA 1998 has not fundamentally changed the UK constitution and the need for an adoption of a Bill of Rights alerted many UK governments.

Lots of democratic countries with written constitutions have adopted a Bill of Rights which lays out certain fundamental rights such as the right to speech, the right to a fair trial, life, freedom from torture and slavery. It affords a high constitutional safety of human rights and liberties and it establishes procedures for good governance, giving to the judiciary the role of the protector. Their provisions are elaborate, far-reaching, and effective and their relationship with international human rights give them the coherence which had not enjoyed previously. It is also a constitutional document in a higher position than other legislation. The United Kingdom, at present, has a constitution made up of thousands of legal precedents. It has been proposed to put all the fundamental principles derived from its precedents into a proper written Bill of Rights but a big question arose; would a Bill of Rights affect the separation of powers; the relationship amongst Parliament, government and courts?

Many Bills Of Rights give the legal power to courts to interpret and enforce the rights and liberties identified in the Bill of Rights and thereby restricting executive government to interfere with. In USA human rights are constitutionally protected since courts are allowed to declare a statute unconstitutional that is incompatible with the rights derived from the US Bill of Rights. It is followed that it is essential to include principles with fundamental importance in a Bill of Rights because the infringement of which is going to be illegal.

The protection of individual rights from the arbitrary and excessive governments is the corner stone of democracy, thereby reflects the characteristics of the society and emphasises the constitutional principle of the rule of law. It is considered as a highly symbolic instrument; a mechanism which persists as the symbol of nation aspiration. A new British Bill of Rights should define the core values that differentiate our country from others. We live in the globalised 21st century in which challenges such as international terrorism threaten our security and liberties therefore, protection of fundamental rights and liberties is necessary. It has been proved throughout history that the HRA 1998 has not achieved to fight crime and terrorism; so we are coming to the conclusion that a constitutional reform is required. In order to establish fundamental principles into a British Bill of Rights, we must first understand the challenge we face and then set up our principal aims. In that way, the EctHR should apply the ‘margin of appreciation’, uphold and respect our values. The procedure of change in which it may be subject is much more difficult than a change in an ordinary legislation.

A significant advantage is that let citizens to be aware of their constitutional rights, duties of citizenship and the positive duties of the State towards an individual. It should define and work out with human rights and liberties included in the ECHR in a clearer and simpler way. Special protection is provided to vulnerable and minorities groups such as children, women and everyone who are not fully protected under the regular law. It strengthens the European Convention of Human Rights and incorporates additional rights such as economic, social and political identified in international treaties.

However, bills of rights are not without disadvantages. It should embody society’s long-held principles. We are living under laws normally tolerated by the huge changes in the way of living and thinking. It may enshrine principles that will change in the future. In fact, societies throughout history have had differing expectations of life depending on their religion and cultural environment. The problem occurs as Bill of Rights is a legal document which binds future generations with different values. A clear example is the right to bear arms in the US Bill of Rights which is now outdated and obstacle.

Some people support the idea that the entrenchment of a Bill of Rights is incompatible with democracy. It might be argued that such a document is coming against United Kingdom’s constitutional principles which protect interests in favour of the majority instead of each individual. It seems that the aims of such a legal document are at odds with public interests and national safety. Therefore, it could be said to be damaging to the UK constitution to uphold the right to freedom of expression over the protection of national security. Moreover, it may be in breach of separation of powers. A Bill of Rights strengthens the role of the judiciary, giving them the ability to strike down a statute that it would be incompatible with the human rights and liberties. This is coming against the constitutional principle of Parliamentary sovereignty; Parliament does whatever it wants.

It is justified, however, that many Bill of Rights do not bestow excessive powers to judiciary since government has the power to interfere with human rights when it is necessary. For example, the Canadian Charter of Fundamental Rights confers power to legislature to pass legislation which is not consistent with human rights. Thus, in UK, Parliamentary sovereignty is preserved and government can derogate from its responsibility to act in compliance with Conventions incorporated into UK law, when it is essential in favour of the abovementioned collective rights. As Dicey stated:

“ The principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament[ defined as the Queen in Parliament] has, under the English constitution, the right to make and unmake any law…” [23]

It is possible to make exceptions to the scope of a particular right, provided that they are reasonable and legitimate. For example, the right to life [24] can be deprived from an individual in case of death penalty according to laws regulating criminal proceedings. What a Bill of Rights requires is that any legislation is passed must be in compliance with the Bill according to s.3 of the HRA, even if the Parliament indicates otherwise.

Finally, a Bill of Rights has been characterised as anti-democratic. It is apparent, though that values and rights derived from such a fundamental document are foundation of democracy. The Bill provides different ways to promote these values when are challenged by any arbitrary government. A specific value is promoted from such a document is the dialogue. Even though the judiciary has the last say on the application of statutes in order to be compatible with human rights, there are some cases (e.g. national security), that Parliament would be a more appropriate body to take actions in favour of the public body than courts.

CONCLUSION

It is clear that the incorporation of European Conventions into domestic law via the HRA 1998 has had a beneficial impact on the constitution of United Kingdom. It has provided protection of human rights and civil liberties to a great extent. It has limited the excessive and arbitrary behaviour of each branch of UK government, since every decision is taken must be Conventions-compliant. However, it seems that HRA has not provided an absolute shield of the human rights. That is happening, basically because of the Parliamentary sovereignty for the reasons I have mentioned above. This kind of situation brought with it a doubt about the effectiveness of the Act. The thinking of introducing a Bill of Rights similar to the US Bill of Rights and the Canadian Charter of Human Rights, keeps busy the governors of our country. The idea of establishing a new legal framework-a well-drafted Bill- which will set out the fundamental rights and liberties of each individual, our constitution and our legislation will work in a good faith for the public interests.