Civil Liberties:
Instead of active human rights, civil liberties were traditionally recognised in UK law by statutes and common law. [1]
Freedom and Liberty:
Ideas of freedom and liberty have been accepted on the UK for centuries.
‘The enjoyment of the property that he has in this state is very unsafe, very unsecure. This makes him willing to quit a Condition, which however free, is full of fears and continual dangers: And ‘tis not without reason, that he seeks out, and is willing to join in Society with others who are already united [. . .] for the mutual Preservation of their lives, Liberties and Estates [. . .].’ [2]
Key movements, such as the Suffragettes, sought universal freedom and liberty. However, the vernacular of ‘human rights’ not part of progressive ideas until much later.
Instead, ‘civil liberties’ encompassed a citizen’s ability to do anything that was not prohibited by the law, so long as they did not interfere with other people’s liberties. This is known as having ‘negative freedom’. These were, however, not active rights so could easily be legislated contrary to.
In Hubbard v Pitt, protesters handed out leaflets and carried posters outside H’s estate agency. H claimed P had trespassed over the public footpath outside his premises and was granted an injunction to stop the protest. The Court of Appeal upheld the injunction (Denning MR dissenting, noting the vulnerability against protesters in English law).
In AG v Guardian (‘Spycatcher’ Case), an injunction had been issued against the publication of a book written by an MI5 agent. Instead, it was published in the US. G wanted to write about the book in their newspaper, but was stopped.
A shift from the notion of ‘liberty’ to ‘human rights’ spurred change.
Human Rights:
Human rights are generally derived from international treaties. [3]
United Nations Proposals for an International Bill of Rights:
The UN proposed a universal bill of rights following the atrocities of WW2. It would allow states to challenge another state for their infringement of rights.
Due to the conflict between state sovereignty and human rights, individual states would have to consent and participate.
Early treaties that were signed were unenforceable, but this improved over time.
European Convention on Human Rights:
Signed in 1950 and came into force in 1953, the ECHR created a commission and court of human rights. Countries could take other countries to ECtHR if they believed human rights and fundamental freedoms were being breached. The Convention also gave individuals the right to take a country to ECtHR for breaching their rights where they have exhausted all domestic means, however the UK opted out of this until 1966.
‘For the first time, individuals would be able to exercise personally enforceable rights under international law, before an independent and impartial tribunal’ [4]
‘The British [. . .] supported international declaratory norms but firmly opposed any attempt to establish binding legal obligations, centralized institutions, individual petition, or compulsory jurisdiction.’ [5]
Despite the UK being the first state to sign the ECHR, it was slowly adopted in UK courts.
In ‘Thalidomide’ Case, ST took UK to ECtHR following an injunction issued to them preventing publication of concerns and criticisms of settlement proposals following the thalidomide disaster. The ECtHR concluded that the injunction breached freedom of expression.
In Sunday Times v UK (‘Spycatcher’ Case), (see case above) the ECtHR held that the injunction preventing publication violated freedom of expression and the UK Govt had no reasonable justification for the impedance of rights.
The convention could only be relied upon in the international court (ECtHR), but not domestically, creating a conflict. Reliance on the ECHR internationally often takes a long time. Without a domestic means of enforcing the ECHR, many people didn’t get justice due to the expense and time required.
In Abdulaziz, v UK, the husbands of 3 married women were prevented from entering the UK due to immigration laws. The judgement took over five years to be delivered.
In Malone, M’s correspondence was being intercepted during his criminal trial. M’s claim failed domestically as he couldn’t show any wrong being committed against him and the state could also do whatever the law didn’t prohibit too (‘civil liberties’).
When he took the case to the ECtHR, it was found that there was no prescription in UK law providing justification for breaching M’s right to privacy. There must be statutory authority for breaching ECHR rights. M won his case.
Megarry J (Domestic Court): ‘it can lawfully be done simply because there is nothing to make it unlawful’.
In Brind, the courts upheld the Home Secretary’s decision to a public broadcast ban in Northern Ireland. Since the courts did not allow ECHR claims domestically, the claim had to go to ECHR.
Donaldson MR: refused to impute to Parliament ‘an intention to import the Convention into domestic law by the back door, when it has quite clearly refrained from doing so by the front door’.
Calls for statutory recognition of rights arose domestically. [6] While rights existed separately in certain statutes, [7] there was no general statutory framework for the protection of rights prior to the Human Rights Act.
ECHR Rights (that the UK has signed up for):
Article 2 - Right to life
Article 3 - Prohibition of torture
Article 4 - Prohibition of forced labour
Article 5 - Right to liberty and security
Article 6 - Right to a fair trial
Article 7 - No punishment without law
Article 8 - Right to respect for private and family life
Article 9 - Freedom of thought, conscience and religion
Article 10 - Freedom of expression
Article 11 - Freedom of assembly and association
Article 12 - Right to marry
Article 13 - Right to an effective remedy
Article 14 - Prohibition of discrimination in the enjoyment of rights and freedoms
First Protocol, Article 1 – Protection of property
First Protocol, Article 2 – Right to education
First Protocol, Article 3 – Right to free elections
Sixth Protocol, Article 1 – Abolition of the death penalty
Sixth Protocol, Article 2 – Death penalty in time of war
Resources:
References:
[1] EG: freedom of expression recognised at common law (Entick v Carrington [1765] EWHC KB J98; Derbyshire County Council v Times Newspapers Ltd [1993] AC 534, 551) [2] John Locke, Two Treatises of Government (3rd end. 1698) 368 [3] Universal Declaration on Human Right (1948); European Convention on Human Rights (1953); International Covenant on Civil and Political Rights (1966); International Covenant on Economic, Social and Cultural Rights (1966); Charter of Fundamental Rights of the European Union etc. [4] Anthony Lester QC ‘Human Rights and the British Constitution’, in J. Jowell and D. Oliver (eds) The Changing Constitution (7th edn. Oxford University Press 2011) ch. 3, p. 74 [5] A. Moravcsik, ‘The origins of human rights regimes: Democratic delegation in postwar Europe’ (2000) 54 International Organization 217, 238 [6] See Peter Thornton, Decade of Decline (1989), Ewing and Gearty, Freedom under Thatcher (1990) [7] See Police and Criminal Evidence Act 1984
Cases Mentioned:
Hubbard v Pitt [1976] 1 QB 142
Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109
Sunday Times v United Kingdom (1981) 3 EHRR 317 ('Thalidomide' Case)
Sunday Times v United Kingdom (No 2) (1992) 14 EHRR 123 ('Spycatcher' Case)
Abdulaziz, Cabales and Balkandali v The United Kingdom (1985) 7 EHRR 471
Malone v Metropolitan Police Commissioner [1979] 1 CH 344, [1980] QB 49; Malone v United Kingdom (1984) 7 EHRR 14
R v Secretary of State for the Home Department, ex parte Brind [1991] 1 AC 696
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