Rights in Context

Definitions

Civil liberties are 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.

Major milestones

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 the right to life, freedom from torture, right to a fair trial, freedom of thought and expression, right to marry, and much 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.

Civil liberties in recent years

Recently, there has been a growth of a human rights ‘culture’ amongst judges, perhaps as a result of measures such as the HRA. Judges increasingly see themselves as the protectors of human rights and are increasingly willing to challenge ministers. This is often a response to the perceived trend of governments to expand their own powers at the expense of rights/liberties. Examples are below.

Civil liberties under Labour:_(source: politics.co.uk) _The Labour government elected in 1997 __was frequently accused of running a “nanny state”, but by the time of the __2010 __general election, criticisms had increased to more serious accusations of excessive state interference and state control, infringements of civil liberties and a gradual erosion of the rights of the individual. One of the main concerns was the enormous number of new criminal offences brought in by Labour. Between __1997 __and __2009, 4,289 new criminal offences were created, approximately one for every day the party was in power; and the number continued to increase, rising from 27 new offences a month under Tony Blair, to 33 a month under Gordon Brown.

Further concerns about infringement of civil liberties were raised by the passing of the Regulation of Investigatory Powers Act __2000 __(RIPA), dubbed the ‘snoopers’ charter’. The Act creates a regulatory framework to govern the way public bodies, such as the police and security and intelligence services, use covert techniques when investigating terrorist threats and other serious crimes, the purpose being to ensure investigatory powers are used in accordance with human rights.

There were numerous other measures introduced by Labour, claimed as necessary to fight the so-called “war on terror”, which was seen as perhaps the most serious threat to civil liberties. Tony Blair suffered his first defeat as prime minister in __2005 __when MPs rejected his call for the pre-charge detention limit for terror suspects to be increased from 14 to 90 days. The move had attracted warnings of a possible infringement of habeas corpus. MPs later agreed on an increased time limit of 28 days. A further attempt in __2008 __under Gordon Brown’s leadership to increase the time limit to 42 days was thrown out by the Lords.

The introduction of ID cards together with an accompanying national identity register was widely opposed, as was the increased retention of data on the DNA national database, particularly the decision to store the DNA of large numbers of innocent people. Excessive use of stop and search powers also caused concern. Any police force authorised by the Home Secretary could randomly stop and search any person or vehicle on suspicion of terrorism under Section 44 of the Terrorism Act 2000.

Civil liberties under the Coalition:_(source: politics.co.uk) _The Coalition came to power promising to restore the rights of individuals. The use of Section 44 of the Terrorism Act 2000 __which allowed police to carry out random stop and search acts - and which had been ruled unlawful by the European Court of Human Rights in January __2010 __- was repealed by the Coalition and replaced with a more limited power under the Protection of Freedoms Act introduced in __2012. Other measures in the Act include reducing the pre-charge detention of terrorist suspects to a maximum of 14 days; requiring schools to obtain parental permission before taking fingerprints of children; ending the storage of DNA of innocent people.

However, not all civil liberties concerns have been addressed by the Coalition and the spectre of another ‘snoopers’ charter’ has raised its head in the form of the Draft Communications Data Bill published in June 2012. The Bill proposes to allow security services access to all communications data – i.e. records of all emails, texts and phone calls – and for communications service providers (CSPs) to collect the data which will be stored for 12 months.

The right to protest and the policing of protests is another issue which constantly raises questions about infringements of civil liberties, one current bone of contention being so-called ‘kettling’ where demonstrators are contained within a particular area by the police. The Ministry of Justice has also had to defend cuts to legal aid, included in the Legal Aid, Sentencing and Punishment of Offenders Act passed in May 2012, a move which has provoked outrage from civil liberties campaigners, disability groups, the legal profession and others. Liberty warned that publicly funded legal advice and representation “will be put beyond the reach of vast swathes of the British population” and the Labour peer, Lord Bach, led a Lords rebellion against the cuts.