Civil liberties: a range of rights and freedoms that demand non-interference by government. They are based on the notion of citizenship; being a citizen of a certain country, and usually include freedom of speech, a free press, freedom of association, and freedom of religion. The government should not interfere in these areas.
Human rights: belong to all people in all societies, by virtue of being human. They are inalienable, meaning they cannot be taken away under any circumstance and are absolute- they must be fully upheld in all cases.
Magna Carta, 1215: signed by King John, the ‘Great Charter’ was a series of written promises between the king and his subjects. The king agrees to govern England and deal with its people according to the customs of feudal law. It was an attempt by the land-owning barons to stop the king from abusing his people. From this perspective, it can be seen as the first example of an attempt to protect the people from being caused suffering- a forerunner to the idea of human rights.
Human Rights Act, 1998: this came into effect in 2000 and incorporated the European Convention on Human Rights (ECHR) into UK law. For the first time, a legal documentation of UK citizens’ rights was enshrined in law, giving judges an opportunity to check that government laws are compatible with the act. The main function was to make explicit in law rights which, in effect, already existed. UK citizens’ access to the European Court of Human Rights was therefore strengthened. The act includes rights such as right to life, freedom from torture, right to a fair trial, freedom of thought and expression, right to marry, and many more.
Freedom of Information Act, 2000: this established in law the public ‘right to know’, and made government more open and therefore accountable in its decision-making.
Equality Act, 2010: The Equality Act 2010 legally protected people from discrimination in the workplace and in wider society, replacing previous anti-discrimination laws (e.g. sex discrimination, race relations) with a single Act, making the law easier to understand and strengthening protection in some situations. It set out the different ways in which it is unlawful to treat someone.
The Protection of Rights in the UK
In recent years, it has been the role of judges and the courts to protect rights and liberties in the UK. One way in which this is done is through judicial review, which is the checking (and possibly overturning) of actions of government. This is more difficult in the UK than in the USA, where, due to the existence of a codified constitution, judges can easily check whether actions carried out by the government are constitutional. In the UK, judges cannot overturn Acts of Parliament but can decide on the lawfulness of actions carried out under delegated legislation (that is, laws that allow other bodies, such as ministers, to act with Parliament’s authority). Judges can decide whether ministers are acting beyond their power through this measure (the doctrine of ‘ultra vires’- beyond the power). An example of a successful judicial review was in November 2013, when the Court of Appeal upheld a legal challenge by five disabled people over the decision to abolish the Independent Living Allowance.
Judicial review is controversial, not least because it means that unelected judges are, in effect, making policy. The process is also very costly, and most reviews end up siding with the government anyway.
Judges also protect rights through the use of the Human Rights Act (HRA). This enables judges to challenge cases on the basis of human rights, for example in 2005 the ban on prisoners voting was declared unlawful. Another notable case was that of Abu Qatada, whose deportation to Jordan was blocked due to the fear that evidence obtained under torture would be used against him. In such cases, courts can issue a ‘declaration of incompatibility’, forcing Parliament to revise the legislation or to set aside certain provisions of the HRA- a process known as derogation. Supporters of the HRA suggest it has strengthened the capability of judges to effectively uphold civil liberties, has educated the people about their rights, and has made government ministers take rights and liberties into account more.
The Human Rights Act is not, however, fully entrenched. It cannot overturn Acts of Parliament and is not binding on Parliament (Parliament can amend/overturn aspects of it).
The Human Rights Act is controversial, as it allows judges to ‘rewrite’ legislation passed by elected governments. Some also argue that the HRA ‘inflates’ rights, meaning that rights such as the right to marry enjoy the same status in law as the right to be free from torture. Many Conservatives view the HRA negatively, as it means that in some cases the rights of an individual (such as Abu Qatada) take precedence over the rights of society at large (Abu Qatada was suspected of being involved in radical Islamic terrorism, which is why the government wanted to deport him). Conservatives have proposed replacing the HRA with a ‘British Bill of Rights’, although exactly what is meant by this is unclear.