Human rights in the United Kingdom
United Kingdomhas a long and established tradition of avowed respect for its subjects' human rights. At the same time, the UK, like many nations, has also had a history of both "de jure" and "de facto" racial and ethnic-religious discrimination, and, even in recent history, occasional violations of basic human rights, particularly in times of national securitycrises. In recent years, however, British human rights legislation has been criticised for excessive attention to the human rights of offenders at the expense of those of victims; many high-profile cases, such as those of Learco Chindamo[http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2007/08/22/nlawrence122.xml David Cameron: Scrap the Human Rights Act] , 24 August 2007, "Daily Telegraph"] and the 2006 Afghan hijackers case, [http://news.bbc.co.uk/1/hi/uk/4760539.stm Hijacker ruling draws criticism] , BBC News, 12 May 2006] have attracted controversy, sparking calls for the review of the Human Rights Act 1998and other legislation.
The British Citizen and the State
The notion of citizenship
In most democratic countries, the notion of citizenship (as opposed to that of
nationality) recognises that a State owes to its people certain inalienable rightswhich are characterised as "fundamental" in the sense that they enjoy a specially protected status in domestic law. In return, it is accepted that the citizen is expected to meet certain standards and comply with certain requirements vis-à-vis the State.cite book | last = Lord Mackay of Clashfern | first = | authorlink = | coauthors = | title = Halsbury's Laws of England, Vol. 8(2) reissue | publisher = | date = | location = | pages = | url = | doi = | id = | isbn = 0406047766 ]
This concept of citizenship is unknown to English constitutional law which, under the influence of Burke, Bentham, Austin, Dicey and Jennings, has treated British citizens as "subjects of the Crown without the benefit of positive and fundamental constitutional rights giving protection against the state and its agents." The rights that are recognised - "the liberties of the subject" - are "residual and negative" in nature, i.e. the individual is free to do what he or she likes save insofar as the activity is restricted by the law.cite book | last = Pannick | first = David | authorlink = David Pannick | coauthors = Lester, Anthony | title = Human Rights Law and Practice | publisher = LexisNexis Butterworths | year = 2004 | location = London | pages = para. 1.02 | url = | doi = | id = | isbn = 040696971X ]
Absence of a codified constitution
The situation is compounded by the absence of an enforceable, constitutionally protected Bill of Rights or a written constitution, which, along similar lines to the
United States Bill of Rightsor the Declaration of the Rights of Man and Citizen, would define the relationship between the citizen and the State, including the rights owed by the State to the citizen and vice versa. The basis of the relationship between State and citizen is instead constructed on a variety of statutory provisions and common rules which, taken en masse, seek to confer on the citizen certain rights and liberties normally associated with citizenship, whilst also imposing certain duties. For example, the case of Entick v. Carringtonin 1765 established the limits within which officers of the State could act, the Reform Act of 1867 accorded a wider right to vote, and the National Insurance Act 1911instituted a basic welfare system. These rights apply regardless of the nationality of the individual in question.xxx]
Human rights under English law
Right to life
Protection of the right to life is primarily ensured by the criminal law (the crimes of murder and manslaughter). Some protection is also offered by the civil law where, for example, the
Fatal Accidents Act 1976allows relatives of people killed by the wrongdoing of others to recover damages.
Capital punishment had by 1998 been abolished in respect of all offences.
The law also attaches importance to the preservation of life: aiding and abetting a suicide is a criminal offence (see the
Suicide Act 1961) and euthanasiais unlawful (see the Bland case). Furthermore, there is a duty upon medical professionals to keep patients alive unless to do so would be contrary to the patient's best interests based on professional medical opinion (the Bolam Test), taking into account his or her quality of life in the event that treatment is continued.
Where an asylum-seeker claims the existence of a threat to his or her life in the event of
deportation, this threat must be balanced against evidence of the risk the person poses to national security were he or she to remain in the UK. Such persons may also be able to rely on the principle of the "common law of humanity" which obliges the state "to afford them relief and to save them from starving" (see R v Inhabitants of Eastbourne (1803) 4 East 103).
Freedom of expression and conscience
Regarded as one of the most important human rights, the courts have stated that there is no difference between the protection offered by the common law, and that guaranteed by the
European Convention on Human Rights[cite news | first= | last=| coauthors= | title=Attorney-General v. Guardian Newspapers Ltd (No 2) (1988) UKHL 6| date= | publisher= | url = http://www.bailii.org/uk/cases/UKHL/1988/6.html | work = | pages = | accessdate = | language = ] . The freedom of expression of Members of Parliament is encouraged and guaranteed by parliamentary privilege.
The right can be restricted where it is justified in the
public interest, for example where national security concerns prevail (see the case of Ponting) or where countervailing interests of privacy, public order or religious tolerance must take priority. In addition, the law may also require that in certain situations information is kept confidential or may place a restriction on its dissemination. This is the case of the confidentialityand defamationlaws, as well as the offence of contempt of court. Television, radio and other broadcast media are also subject to legal regulation (see for example the Press Complaints Commissionand Ofcom). Freedom of conscienceis related to the freedom of expression and allows an individual to hold certain views without fear of persecution, it also includes the freedom of religion.
Right to free assembly
The right to free assembly is considered an aspect of the right to freedom of expression. Simply put by
Lord Denning, it is the right for "" [e] veryone [..] to meet and assemble with his fellows to discuss their affairs and to promote their views" [cite news | first= | last=| coauthors= | title=Verrall v. Great Yarmouth Borough Council (1981) 1 QB 202 | date= | publisher= | url = | work = | pages = | accessdate = | language = ] . However, as noted by Lord Bingham[cite news | first= | last=| coauthors= | title=R (on the application of Laporte) v. Chief Constable of Gloucestershire (2006) UKHL 55 | date= | publisher= | url = http://www.publications.parliament.uk/pa/ld200607/ldjudgmt/jd131206/lapor-1.htm | work = | pages = | accessdate = | language = ] , the approach adopted by English law to this right has been "hesitant and negative, permitting that which was not prohibited". This can be seen in Dicey's "An Introduction to the Study of the Law of the Constitution" (1959) where he writes that " [a] t no time has there in England been any proclamation of the right to liberty of thought or to freedom of speech", and that "it can hardly be said that our constitution knows of such a thing as any specific right of public meeting". [cite book | last = Dicey | first = A.V. | authorlink = A.V. Dicey | coauthors = | title = An Introduction to the Study of the Law of the Constitution | publisher = Macmillan | year = 1959 | location = London | pages = 239-240, 271 | url = http://www.constitution.org/cmt/avd/law_con.htm | doi = | id = | isbn = ] Viewed in this light, the development of a right to free assembly can be seen as a relatively recent constitutional development largely brought on by the gradual growing influence of the European Convention on Human Rights on English law.
The exercise of the right to free assembly has been restricted by the common law as well as legislation. Thus, the criminal offence of
breach of the peaceis committed when harm is done to a person or his property, or there is a threat of harm, and that harm is caused by an " assault, affray, riot, unlawful assemblyor other disturbance." [cite news | first= | last=| coauthors= | title=R v Howell (1982) QB 416 | date= | publisher= | url = http://www.freebeagles.org/caselaw/CL_bp_Howell_sum.html | work = | pages = | accessdate = | language = ] Furthermore, the Public Order Act 1986allows the police to place restrictions on public assemblies and the Public Order Act 1936outlaws the wearing of political uniforms at a public meeting when they suggest an association with a political object. More recently, the Serious Organised Crime and Police Act 2005introduced measures limiting the right to demonstrate in Parliament Square, and the Criminal Justice and Public Order Act 1994gives the police powers to break-up certain public gatherings. It is, however, recognised that there is a right to picket (TULR(C)A 1992).
Right to personal privacy
The right to personal privacy is not precisely defined and can be more properly described as the cumulative effect of a collection of different rights. There is no general
right to privacyin English law and the courts, when faced with cases alleging an invasion of privacy, have made it clear that the creation of such a right can only be done by Parliament. [cite news | first= | last=| coauthors= | title=Wainwright v. Home Office (2003) UKHL 53 | date= | publisher= | url = http://www.bailii.org/uk/cases/UKHL/2003/53.html | work = | pages = | accessdate = | language = ] A patchwork of different torts combine to protect an individual from harassment, including the dissemination of information about him or her, see the torts of trespass, harassment, Defamation, nuisanceand malicious falsehood. The criminal law also provides a certain level of protection - it is an offence to use violence to obtain unauthorised access to a property (CLA 1977 and the Protection from Eviction Act 1977) or to intentionally harass a person (POA 1986). A person's right to communicate privately is also protected to a certain degree (RIPA), as is his or her right of access to personal information (DPA 1998). The right to a private life, mentioned below, also links in with this right.
In recent cases involving
celebritiesthe House of Lords have sought to remedy the absence of a right to privacy by extending the protection offered by the law of confidence. Therefore, the model Naomi Campbellwas able to obtain damages from a newspaper which had published photographs of her leaving a Narcotics Anonymousmeeting [cite news | first= | last=| coauthors= | title=Campbell v. MGN Limited (2004) UKHL 22 | date= | publisher= | url = http://www.bailii.org/uk/cases/UKHL/2004/22.html | work = | pages = | accessdate = | language = ] , and Michael Douglasand Catherine Zeta-Jonessuccessfully sued Hello!for publishing unauthorised photographs of their wedding; OK!which had purchased the exclusive rights to the photographs was also able to obtain redress on the basis that it had paid a large sum of money for the images, giving them therefore commercial value worthy of protection by the law. Giving this innovative judgment, Lord Hoffmannemphasised that the ruling did not amount to the recognition of image rights in English law. [cite news | first= | last=| coauthors= | title=Douglas & Ors v. Hello! Limited and Ors (2007) UKHL 27 | date= | publisher= | url = http://www.bailii.org/uk/cases/UKHL/2007/21.html | work = | pages = | accessdate = | language = ]
No arbitrary searches or seizures
Protection against arbitrary searches and seizures overlaps with the rights to liberty, privacy and natural justice. In English law, the right to be free of arbitrary searches and seizures is found mainly in the legislation regulating the powers of the police to conduct searches and take evidence. Therefore, under the
Police and Criminal Evidence Act 1984, a constable's right to stop and searchpersons and vehicles is limited by section 2, as are the powers of a Justice of the Peaceto authorise the entry and search of premises. In addition, section 60 of the Criminal Justice and Public Order Act 1994allows a senior police officer to authorise all police officers in a locality to stop and search any pedestrian or vehicle where the officer has grounds for believing that the individual is carrying an 'offensive weapon' or a 'dangerous instrument'. In 1998 this legislation was extended to allow the officer to require the person to remove clothing worn for the purpose of concealing his identity, and to confiscate that article of clothing. Special extended powers also apply in the case of terrorist suspects.
In civil cases, a judge may grant an
Anton Piller orderauthorising the search of premises and seizure of evidence without prior warning. The order's purpose is to prevent the destruction of incriminating evidence, particularly in cases of alleged intellectual propertyinfringement.
Right to respect for private and family life
An individual's right to respect for his or her private or family life is protected insofar as the activity being pursued has not been outlawed or restricted by the state. In that respect, the fact that an individual has consented to the performance of an act which would otherwise be unlawful does not change the status of the act; thus, in a case involving acts of
sado-masochismcommitted in private between two consenting adults, the House of Lords held that the victim's consent to the acts did not afford their author a defence to charges under the OAPA 1861. [cite news | title=R v Brown (1992) UKHL 7 | url = http://www.bailii.org/uk/cases/UKHL/1992/7.html | ]
Similarly, an individual is free to make choices as to his private life, for example in pursuing
homosexualrelationships, but the law may not in certain circumstances intervene to ensure that his status and rights are not affected as a result of these choices. In "R v. Ministry of Defence, ex p. Smith" the Court of Appeal upheld the Ministry of Defence's policy not to admit homosexuals to the armed forces [cite news | title=R v. Ministry of Defence, ex p. Smith (1995) EWCA Civ 22 | url = http://www.bailii.org/ew/cases/EWCA/Civ/1995/22.html | ] ; the claimants later brought a case before the European Court of Human Rightswhich found violations of Articles 8 and 13. The Court of Appeal held in another case that it was reasonable for the parents of a child up for adoption to refuse consent to adoption on the ground that the proposed adopter is a lesbian. [cite news | title=Re E (1995) 1 FCR 65 | ]
The right to respect for family life is qualified by the broad principle that the welfare of the child is paramount and parental rights must take second place. As expressed by
Lord Scarman, "parental rights are derived from parental duty andexist only so long as they are needed for the protection of the person and property of the child", and by Lord Fraser, "parental rights to control a child do not exist for the benefit of the parent". [cite news | title=Gillick v West Norfolk Area Health Authority (1986) AC 112 | url = http://www.bailii.org/uk/cases/UKHL/1985/7.html | ] The effect of this is to allow state intervention in family life where justified in the interests of the child in question, and the Children Act 1989gives effect to this by providing a basis on which decisions relating to a child's welfare are made. Section 1 of the Act provides that a court must, when taking a decision with regard to a child, take into account the child's wishes and feelings.
There is no general right to marry [cite news | title=R v Secretary of State for the Home Department, ex p Bhajan Singh (1976) QB 198 | ] .
Right to bodily integrity
Right to personal liberty
An individual's right to liberty is protected against interference by the state by two principles. Firstly, an individual is free to do anything which is not prohibited by law. Secondly, the state can only interfere with a person's liberty where permitted by law. In addition, the
tortof false imprisonmentand the crime of kidnappingguarantee some protection against the deprivation of liberty, as does the right of habeas corpus. Where an individual is lawfully arrested on the basis of an arrest warrant, the length of his detention is prescribed by statute; the detainee's rights and the powers of the police during the period of detention are also regulated (see PACE 1984).
Freedom of association
The right of freedom of association implies the right to join, form, and withdraw membership from groups, associations and partnerships of different kinds. Respect of this principle can be found in the relative ease by which companies and trusts can be set up. The right is also expressed by the doctrine of
freedom of contractwhereby one individual has a full and free right to enter into a contract with another individual, and also by the lack of regulation of political parties.
In employment law, an individual has the right in certain circumstances to affiliate with a
trade union, an employee can claim unfair dismissalif he is dismissed for trade union activities and is protected from discrimination on the basis of his trade union activities. However, there is no obligation on employers to recognise collective bargaining agreements except in certain very limited circumstances and their role has declined significantly.
The right of freedom of association can be restricted on grounds of public order and
national security. See for example the Public Order Act 1936and the Prevention of Terrorism (Temporary Provisions) Act 1989.
Right to participate in government
Representation of the People Act 1983confers the right to vote on British citizens and citizens of the Commonwealth and Ireland who are resident in the UK. In addition, citizens of Member States of the European Union have the right to vote in local elections and elections to the European Parliament. The right to vote also includes the right to a secret ballotand the right to stand as a candidate in elections.
Right to protection of the law
A number of principles combine to guarantee an individual a certain level of protection by law. Firstly, the presumption that a person is innocent of a crime of which he is accused until it is proved otherwise. In discharging the
burden of proof, the onus is on the prosecution (see Woolmington v. DPP). Secondly, according to the principle of nullum crimen et nulla poene sine lege, an individual cannot be convicted of an offence which was not provided for by law at the time of his conduct. Thirdly, an individual is entitled to confidential and free legal advice (see legal aid). Finally, every person is entitled to a fair and speedy trial and free and unimpeded access to the courts.
Right to property
Protection of the right to own and enjoy property is found in the criminal offence of theft, by
intellectual property laws and by the principle that there can be no taxation except that which is authorised by Parliament. In addition, the principle of natural justiceaffords protection of property in that a court with powers to affect an individual's property rights is obliged to allow that individual the right to be heard before it proceeds (see Cooper v Wandsworth Board of Works (1863)). The right to property is qualified by compulsory purchase laws.
Economic and social rights
The right to education is guaranteed by the
Education Act 1944, and the right to housing is enshrined in the Housing Act 1985. The enactment of the National Minimum Wage Act 1998installed a minimum wageand the Social Security Contributions and Benefits Act 1992 provides access to social securitybenefits.
The right not to be unjustly excluded from the exercise of a trade or profession has been recognised by the courts (see Nagle v Feilden  2 QB 633).
There is no positive right to healthcare. The National Health Service Act 1977 imposes a duty on the Secretary of State to provide "adequate" healthcare, but the courts have not thusfar been willing to enforce this duty.
There is no unqualified
right to strikein English law and participation in strike action will generally constitute a breach of the employment contract of the workers concerned, even a criminal offence in certain cases. However, dismissal of an employee for taking strike action will constitute unfair dismissal.
Gender Recognition Act 2004allows transsexual(or transgender) people to change their legal gender.
Rights conferred by European Union law
To these rights can be added other rights and 'freedoms' as recognised by European Community law. These include the so-called "Four Freedoms of Movement" enabling citizens of the Member States of the European Union to (a) move freely between Member States, (b) provide services in another Member State, (c) to move capital between States and (d) to move goods between States without restriction. The rights to equal pay and to equal treatment in the workplace and with regard to
social securityare also recognised.
In addition, Articles 8 - 8E of the
Treaty on European Unionintroduce the notion of 'Citizenship of the European Union' which confers five rights on citizens of the Member States: (a) the right to move and reside freely within the Member States, (b) the right to vote and stand for election in the Member State in which the EU citizen resides, (c) the right to protection by the diplomatic or consular authorities of any Member State in a country where his or her own State is not represented, (d) the right to petition the European Parliament, and (e) the right to apply to the European Ombudsman.
Rights conferred by international law
The United Kingdom is party to a number of international treaties and agreements which guarantee fundamental human rights and freedoms. Although such agreements have no direct legal effect in the UK until they have been given formal effect by a domestic law, their provisions have a bearing in the drafting of domestic legislation and by the interpretation of domestic law by the courts. Ministers are recognised to have a duty to comply with international law and citizens may reasonably expect them to do so.xxx]
European Convention on Human Rights
The UK played an important role in the drafting of the Convention, with figures such as
Arthur Goodhart, John Foster QC and the UK-based Hersch Lauterpachtproviding the impetus for the creation of the Council of Europein 1949 as a means of guarding against the rise of new dictatorships and to provide the citizens of Soviet-occupied countries with a beacon of hope.
The initiative in producing a legally-binding human rights agreement had already been taken by the International Council of the
European Movement, an organisation whose cause had been championed by Winston Churchilland Harold Macmillan, and whose international juridical section (counting Lauterpacht and Maxwell Fyfe amongst its members) had produced a draft convention.
Chaired by Maxwell Fyfe and the former French resistance leader Teitgen, the Legal Committee of the Council of Europe's Consultative Assembly proposed that the Council's Committee of Ministers draw up a convention which would take in and ensure the effective enjoyment of the rights proclaimed in the
United Nations' Universal Declaration of Human Rightsof 10 December 1948, as well as establishing a European Court and Commission of Human Rights. The Committee agreed and the text of what was to become the European Convention of Human Rights was in the main drafted by Sir Oscar Dowson, a retired senior legal adviser to the Home Office.
There was grudging support for the Convention back in the UK where Attlee's Labour government were in power. The
Lord ChancellorJowitt, the Colonial Secretary Griffiths and the Chancellor Sir Stafford Crippswanted to protect the British Empire against what they perceived as subversive European influences. They were also keen to protect their own ministerial powers against review by foreign judges whose values were unknown. This, combined with fears that some British practices such as emergency detention without trial, led to the government denying British citizens a right of petition to the European Court of Human Rights or the Court's jurisdiction to try cases involving British matters.
Nevertheless, the UK became the first state to sign the Convention on 8 March 1951, and the first to ratify it with effect from 23 September 1953. No domestic legislation was introduced and no attempt was made to implement the rights into UK law until the passing of the
Human Rights Act 1998. The right to petition the European Court was eventually allowed in 1966.
Currently, over 45 countries have ratified the Convention. Over the years, protocols have been added through agreement between participating nations - not all protocols must be agreed to by all nations, though it is encouraged.
Right of petition
Following ratification of the ECHR, the campaign began for the recognition of the right of British citizens to take their cases before the European Court of Human Rights - 'the right of petition' - and, as part and parcel of this, the recognition of the Court's jurisdiction. The Conservative government in power from 1951 resisted the right of petition on the grounds that the common law would come under scrutiny by an international court. In December 1964 Terence Higgins MP tried to persuade
Harold Wilson's new Labour administration to alter the UK's position, as did the British judge at the European Court of Human Rights, Lord McNair.
In 1965 Wilson informed the House of Commons that the right of petition would be recognised for an initial period of three years with effect from 14 January 1966. At the time the government were concerned that the
Burmah Oil Companywould take advantage of the new right to contest the legality of the War Damage Act 1965 (which deprived the company of its right to compensation to damage caused during the Second World Waras had been recognised by a decision of the House of Lords), and so the date chosen fell outside the six month limitation period for challenges to the 1965 Act.
Campaign for incorporation
The first public call for the incorporation of the Convention into UK law was made in 1968 and was repeated in 1974 by
Lord Scarmanand by Roy Jenkinsin 1976. In 1978 a House of Lords Select Committeepublished a report recommending incorporation which was debated in the Lords leading to an amendment being moved requesting that the government introduce legislation on the matter. Lord Wadesucceeded in securing the Lords' approval for a draft bill but it did not make any progress in the Commons where Alan Beith's unsuccessful attempt to secure a second readingof the bill was poorly attended. In 1986 Lord Broxbourne secured the Lords' approval for his incorporation bill, but was unsuccessful in the Commons, even though a second reading had been obtained.
By 1991 the momentum for incorporation had grown, garnering support from organisations such as
Charter88, Libertyand the Institute for Public Policy Research- the latter two having published proposals for a British Bill of Rights incorporating the rights. Incorporation was also advocated by senior members of the judiciary, both past and present, including Lord Gardiner, Lord Hailsham, Lord Taylor and Lord Bingham, by the Law Society and the Bar Council, also by two former Home Secretaries, Roy Jenkins and Leon Brittan.
"Bringing Rights Home"
The Labour Party leader John Smith QC made a speech on 1 March 1993 entitled "A Citizen's Democracy" in which he called for a 'new constitutional settlement, a new deal between the people and the state that puts the citizen centre stage'. This objective found its way into the Labour Party's proposals for constitutional reform published in 1993, and reiterated at their Conference in that year where a two-stage process was outlined: the incorporation of the Convention, followed by the setting-up of a Commission to prepare a British Bill of Rights.
Lord Lesterintroduced a bill in the Lords which was based on the New Zealand Bill of Rights which would give the ECHR a similar status in UK law as that accorded to European Community law, i.e. allowing courts to disapply future and existing Acts of Parliamentwhich were incompatible with the ECHR, imposing a duty on public authorities to comply with the ECHR and making provision for effective remedies (including damages) for breaches of the ECHR. Introduced during a period of concern over the impact of European Community law on the sovereigntyof Parliament, the bill had a rough ride through the Lords and was subject to wrecking amendments by Conservative ministers.
Upon the advice of senior members of the judiciary, a second bill was introduced in February 1997 which, unlike the first bill, did not confer the power on the courts to strike down Acts of Parliament. The effectiveness of the new bill would depend on the courts' willingness to attribute to it a special constitutional status in UK law and to interpret it widely. The bill had been introduced shortly after the publication on 18 December 1996 by the shadow Labour Home Secretary
Jack Strawof a consultation paper headed "Bringing Rights Home" which put forward the case for incorporation of the ECHR into domestic law. On 5 March 1997 a Labour and Liberal Democrat Consultative Committee on Constitutional Reform chaired by Robin Cookand Robert Maclennanpublished a report calling for the creation of a "Human Rights Commissioner" to oversee the operation of the bill and to bring cases on behalf of those seeking protection of their rights.
The election of
Tony Blair's Labour Party in May 1997 led to the publication of a white paperon the bill - "Rights Brought Home: The Human Rights Bill" - which received its second reading on 3 November 1997. The Liberal Democrats supported the bill, as did numerous eminent crossbenchers - Lord Bingham, Lord Scarman, Lord Wilberforce, Lord Ackner, Lord Cooke of Thorndon and Lord Donaldson. The bill was opposed by the Conservative Party, although several eminent backbenchers rebelled against the party line, most notably Lord Renton and Lord Windlesham.
The bill successfully negotiated the Commons and the Lords as the "
Human Rights Act 1998" and entered into force on 2 October 2000.
Human Rights Act 1998
The Act seeks to give direct effect to the
European Convention on Human Rightsin domestic law, thereby enabling claimants to bring an action directly before UK courts instead of having to take their case to the European Court of Human Rights, as had previously been the case. The Act makes it unlawful for a public body to act contrary to certain rights prescribed by the Convention, and allows a UK court to award a remedy in the event of a breach. The Act only has horizontal effect, i.e. it cannot be invoked in disputes between private parties.
Act of Parliamentbe passed which conflicts with the Convention, the courts cannot, however, overrule or disregard it. The later Act must be interpreted, in sofar as is possible, consistently with the Human Rights Act, but must be implemented, regardless of whether it is lawful according to the convention or not. The court can make a "declaration of incompatibility", but even this cannot force a change, merely strongly encourage reconsideration by Parliament, which remains sovereign.
Human Rights Act 1998has been severely criticised by UK political figures and the media for putting the rights of offenders over those of victims, leading to short prison sentences and lenient treatment of criminals. After a tribunal ruled that Learco Chindamo, the Italian national who murdered headteacher Philip Lawrencein 1996, could not be deported to Italy after his release from prison, opposition leader David Cameroncalled for the abolition of the Act and its replacement with a "British Bill of Rights". Although the Labour government, under former prime minister Tony Blair, was responsible for introducing the Act, the perceived leniency of sentencing has been criticised by Blair and other senior Labour figures. [ [http://observer.guardian.co.uk/politics/story/0,,1774399,00.html Revealed: Blair attack on human rights law] , Sunday May 14, 2006, "The Observer"] The 2006 Afghan hijackers case, where a group of Afghan men who hijacked an aircraftin order to enter the UK were granted leave to remain in the UK, was severely criticised in the British media and by both opposition and government politicians. [ [http://news.bbc.co.uk/1/hi/uk_politics/4765861.stm Tory pledge on Human Rights Act, BBC News, 12 May 2006] ]
The European Convention includes a right to privacy. This is one right that British law had not taken seriously beforehand, and there was a lot of speculation in the legal community as to how far the new act would change the law; battles between privacy and free speech were expected. Although
Naomi Campbelland Sara Coxhave both won high-profile cases, the law has not had quite the impact that had been anticipated. Indeed, the House of Lords in the case Wainwright v. Home Office(2003) involving the routine strip-searching of visitors to a prison, recognised that only Parliament itself could create a specific right to privacy. The claimant later applied to the European Court of Human Rights which found that there had been a violation of Article 8 of the Convention (right to privacy).
During the 1970s and 1980s, the
British governmentfocused a lot of effort on measures to combat the activities of the Provisional Irish Republican Army(PIRA) in Northern Irelandand Great Britain. Included in these measures, the government curtailed the civil liberties- and arguably the human rights - of some interned PIRA suspects. The Ministry of Defence stated "moderate physical pressure" was applied to the men. The European Court of Human Rightsruled that this constituted "cruel and inhuman treatment", but fell short of torturein a landmark 1978 case [http://www.worldii.org/eu/cases/ECHR/1978/1.html] .
War on terrorism
Since 2001, the "
War on Terrorism" has led to new human rights concerns.
The most recent criticism has concerned the
Prevention of Terrorism Act 2005, a response to a perceived increased threat of Islamic terrorism. This act allows the house arrestof terrorist suspects where there is insufficient evidence to bring them to trial, involving the derogation (opting-out) of human rights laws, through the imposition of control orders. This aspect of the Prevention of Terrorism Act was introduced because the detention without trial of nine foreigners at HM Prison Belmarsh under Part IV of the Anti-terrorism, Crime and Security Act 2001was held to be unlawful under human rights legislation, by the House of Lords, in A and Others v. Secretary of State for the Home Department (2004).
Both the above Acts have been criticised for the lack of parliamentary discussion; the Anti-terrorism, Crime and Security Act 2001 went from introduction to
Royal Assentin 32 days, the Prevention of Terrorism Act 2005 in 17.
Civil Contingencies Act 2004has also been criticised as giving the government very wide-ranging power in an emergency.
On February 2, 2005, Parliament's
Joint Committee on Human Rightsalso suggested that the proposed legislation on the British national identity cardmight contravene Article 8 of the European Convention (the right to respect for private life) and Article 14 (the right to non-discrimination) [http://europa.eu.int/idabc/en/document/3861/194] .
Following the September 11, 2001 attacks, the
Anti-Terrorism, Crime and Security Act 2001was passed.
Part 4 of the Act provided for the indefinite detention without charge of foreign nationals certified by the Home Secretary as "suspected international terrorists" where such persons could not be deported on the grounds that they faced a real risk of torture, inhuman or degrading treatment if removed to their home country.
Part 4 did not create new detention powers - under the 1971 Immigration Act, the Home Secretary has the power to detain a foreign national pending deportation. Instead, Part 4 removed a limitation on detention powers imposed by the requirements of Article 5(1)(f) of the
European Convention on Human Rights(which provided, among other things, that someone could only be detained for a short period prior to deportation). This was achieved by the British government derogating from the ECHR on the basis that the threat to the UK amounted to a 'public emergency threatening the life of the nation' within the meaning of Article 15.
However, the use of immigration detention powers meant that, although the British government could not force them, the detainees were technically free to return (albeit facing a real risk of torture). However, 2 detainees did leave - one to France and one to Morocco.
In 2002, the
Special Immigration Appeals Commissionheld that indefinite detention under Part 4 was incompatible with the right to non-discrimination under Article 14 ECHR, on the basis that only suspected terrorists who were foreign nationals were subjected to detention, while suspects who were British nationals remained free. However, SIAC's declaration of Part 4's incompatibility with Article 14 was quashed by the Court of Appeal.
In December 2004, the House of Lords held 8-1 that Part 4 was incompatible with both Article 5 and Article 14 ECHR on the basis that indefinite detention was both a disproportionate measure notwithstanding the seriousness of the terrorist threat, as well as discriminatory.
Following the judgment, the government moved to introduce control orders as an (highly controversial) alternative measure. The use of control orders and the repeal of Part 4 of the 2001 was secured by the passing of the
Prevention of Terrorism Act 2005.
The UK before the European Court of Human Rights
By 2004, the European Court of Human Rights had, in 130 cases, found violations of the European Convention of Human Rights by the United Kingdom.xxx] These judgments cover a wide variety of areas, from the rights of prisoners to trade union activities. The decisions have also had a profound effect and influence on the approach adopted by the UK to the regulation of activities which could potentially engage Convention rights. As one author has noted, " [t] here is hardly an area of state regulation untouched by standards which have emerged from the application of Convention provisions to situations presented by individual applicants." [cite book | last = Jacobs | first = F.G. | authorlink = Francis Geoffrey Jacobs | coauthors = White, C.A. | title = The European Convention on Human Rights | publisher = Clarendon Press | year = 1996 | location = Oxford | pages = 406 | url = | doi = | id = | isbn = 978-0198262428 ]
Notable cases involving violations of the Convention include:
* Criminal sanctions for private consensual homosexual conduct (Dudgeon);
* Refusal to legally recognise
transsexuals (Rees, 1986);
* Different ages of consent for
homosexuals and heterosexuals (Smith and Grady, 2000);
Corporal punishmentin schools (Campbell and Cosans, 1982);
* Sentencing a juvenile young offender to be "birched" (Tyrer, 1978);
Wiretappingof suspects in the absence of any legal regulation (Malone, 1984);
* Restrictions on prisoners' correspondence and visits by their lawyers (Golder, 1975);
* Routine strip-searching of visitors to a prison (Wainwright, 2006);
* Allowing the
Home Secretaryrather than a court to fix the length of sentences (Easterbrook, 2003);
testimonyobtained under coercion as evidence (Saunders, 1996);
* Keeping a suspect incommunicado in oppressive conditions without access to a
* Extradition of a suspect to the United States to face a capital charge (Soering, 1989);
* Granting the police blanket immunity from prosecution (Osman, 1998);
* Shooting of
Provisional Irish Republican Armysuspects in Gibraltarwithout any attempt to arrest them (McCann, 1995);
* Killing of a prisoner by another mentally-ill detainee with whom he was sharing a cell (Edwards, 2002);
* Investigation of an unlawful killing by police officers conducted by the police officers who participated in the killing (McShane, 2002);
* Failure to protect a child from ill-treatment at the hands of his stepfather (A, 1998);
* Failure by a local authority to take sufficient measures in the case of severe neglect and abuse of children by their parents over several years (Z, 2001);
* Ineffective monitoring of a young prisoner who committed suicide during a short sentence (Keenan, 2001);
* Keeping a disabled person in dangerously cold conditions without access to a toilet (Price, 2001);
* Granting of an injunction against the
Sunday Timesfor publishing an article on the effects of thalidomide(Sunday Times, 1979);
* Injunction against the Sunday Times for publishing extracts from the
Spycatchernovel (Sunday Times (no. 2), 1991);
* Ordering a journalist to disclose his sources (Goodwin, 1996);
* Agreement obliging employees to join a certain trade union in order to keep their jobs (Young, 1981).
There has been a growing awareness of
human traffickingas a human rights issue in the UK, in particular the trafficking of women and under-age girls in to the UK for forced prostitution. A particular high profile case resulted in the conviction of five Albanians who ‘trafficked’ a 16 year old Lithuanian girl and forced her into prostitution. [http://news.bbc.co.uk/1/hi/uk/4287432.stm] According to Home Officefigures, there are over 1,000 cases of trafficking each year. Under pressure from organisations such as Amnesty International, the UK government has recently signed the Council of Europe Convention on Action against Trafficking in Human Beings. [ [http://www.amnesty.org.uk/content.asp?CategoryID=10314 AIUK : Trafficking in the UK ] ] [ [http://web.amnesty.org/library/Index/ENGIOR300032005 Council of Europe: Protect victims of people trafficking | Amnesty International ] ] [Home Office, [http://www.homeoffice.gov.uk/about-us/news/convention-against-trafficking Home Secretary signs vital anti-trafficking convention] , 23 March 2007, accessed 25 July 2007]
Human Rights Organisations
Nobel Peace Prizewinning Amnesty Internationalthe largest human rights organisation in the world, was set up in the UK.
JUSTICEis a human rights and law reform organisation based in the UK. It is the British Section of the International Commission of Jurists. Its mission is to promote human rights and advance the rule of law in the UK.
* The lobbying organisation Liberty is an influential pressure group which aims to protect
civil libertieswithin the UK.
ARTICLE 19works to promote freedom of expression in the UK and worldwide.
* A statutory body, the
Northern Ireland Human Rights Commission(www.nihrc.org) was set up in 1999 following the Belfast (Good Friday) Agreement.
No2IDopposes the ID card scheme, in particular, the amalgamation of databases to create what they describe as an unprecedented intrusion into people's privacy.
* [http://www.publications.parliament.uk/pa/jt/jtrights.htm Publications by Parliament's Joint Committee on Human Rights]
* [http://www.state.gov/g/drl/rls/hrrpt/2004/41716.htm U.S. Department of State publication: 2004 UK Country Report on Human Rights Practices]
* [http://www.usemb.se/human/human97/unitedki.html U.S. Department of State publications: UK Country Reports on Human Rights Practices since 1996]
* [http://www.echr.coe.int/Eng/Judgments.htm European Court of Human Rights Judgements]
* [http://www.amnesty.org.uk/ Amnesty International UK site]
* [http://www.ihrc.org.uk/ Islamic Human Rights Commission]
* [http://www.justice.org.uk/ JUSTICE]
* [http://www.liberty-human-rights.org.uk/ Liberty]
* [http://www.cornishstannaryparliament.co.uk/ Cornish Stannary Parliament]
* [http://www.guardian.co.uk/humanrights/0,7368,367207,00.html Guardian Special Report: Human Rights in the UK]
* [http://www.indexonline.org Index on Censorship magazine]
* [http://www.ifex.org/en/content/view/full/1094/ Censorship in the UK] - IFEX
* [http://www.opsi.gov.uk/acts/acts1998/19980042.htm Human Rights Act 1998]
* [http://www.amnesty.org.uk/content.asp?CategoryID=10314 Amnesty International UK trafficking/forced prostitution]
* [http://web.amnesty.org/library/Index/ENGIOR300032005 Amnesty International UK - Council of Europe Convention against Trafficking in Human Beings]
* [http://news.bbc.co.uk/1/hi/uk/4287432.stm Baltic girls forced into sex slavery - BBC]
* [http://news.bbc.co.uk/1/hi/uk/3715445.stm 'Child traffic victims 'failed'- BBC]
* [http://www.timesonline.co.uk/article/0,,7-1307679,00.html ‘They said I wasn’t human but something that can be bought’ – The Times]
* [http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2005/11/06/npros106.xml&sSheet=/news/2005/11/06/ixhome.html ‘Mine for £1,300: Ileana, the teenage sex slave ready to work in London’ – The Sunday Telegraph]
* [http://news.bbc.co.uk/1/hi/world/europe/3979725.stm 'A modern slave's brutal odyssey - BBC]
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