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Absolute Rights |
Many freedoms we possess,
other countries deny their citizens.
However, it is a mistake to
think that we have absolute rights. Most freedoms are subject to some
restriction.
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The concept of the
‘correlative right’. |
Just as we have the freedom of
speech, the state has the right to prevent you from speaking; in other
words for every right there is a 'counter' right.
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The European Perspective |
Effect of Second World War.
More than just sides taking up arms against each other. Nazi genocide
policy - anti-humanitarian.
After the war, Europe decided
to set a new code of conduct for the treatment of human beings.
They protected political
nights - freedom from arrest - imprisonment - from harassment by
authorities.
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1948 The Universal Declaration
of Human Rights |
UN General Assembly passed
this declaration. |
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1950 European Convention on
Human Rights |
A more watered down version of
the U.D.H.R. therefore far more acceptable for states.
Many human rights need to be
afforded in money terms. It presupposes that the state is affluent enough
to provide rights. Where are human rights in Africa for example?
Article13 E.C.H.R. "where
rights and freedom set forth in this charter are indicated. The individual
shall have an effective remedy before a national authority."
It claims to give individuals
specific legal rights.
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UK not a signatory |
The UK did not accept this
convention and so was not bound by it.
When the UK was found in
breach of the Convention, we usually complied, e.g. by bringing in new
legislation - as with telephone tapping after the Malone litigation of
1984.
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Margins of Appreciation |
Where the state maintains its
own right to decide what laws to make.
For example, the age of sexual
consent varies throughout Europe.
The UK's strong adherence to
Parliamentary Sovereignty effectively selects against European Standard
setting.
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1966 International Covenants |
Civil and Political.
The 1950 Convention was still
unacceptable to most nations in some shape or form, and so rights were
sub-divided farther.
Most states ratify political
rights but not civil rights for the simple fact that they cost too much.
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The effect of the EU on the UK |
The whole idea of having joint
economic union was to strengthen Europe's position in the world. It is
designed to be a giant free trade market without tariff barriers and
impediments to trade.
Whilst the whole Europe idea
started from coal and steel, the idea soon grew. Because of the
European Communities Act of 1972 and the Single European Act 1986
leading to greater economic union with Europe, Britain's economy is now
more than ever in the hands of Europe.
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Waddington
v Miah
(1974) |
Concerned the question of
whether the Immigration Act of 1971 was retrospective, and contrary
to article seven of the European Convention.
The Act was in effect
retrospective but the House of Lords ruled that it was not. Broadly
speaking a 'racist' campaign was being taken against Commonwealth citizens
to control immigration into this country.
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Secretary of State
v Bhajan Singh (1976) |
Denning commented that the
Crown in taking part in legislation would do nothing to conflict with the
European treaties. He went so far as to say that the Immigration Act
1971 should be interpreted in the light of the acts.
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Immigration Officers (Heathrow)
v Salemat Bibi |
A few months later in Denning
retracted his decision in Bhajan Singh saying he had gone too far.
Basically, pressure from the Government and judiciary was to blame for
this. |
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Case of Fernandez (1981) |
Court of Appeal decided that
the Home Secretary in exercising his statutory powers is not obliged to
take the provisions of the convention into account since it does not have
"the force of law in this country".
This situation fuelled the
debate that we should have our own Bill of Rights.
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Enforcing rights in Europe |
The procedure for the
enforcement of Human Rights in Strasbourg is slow; even English Courts
work more efficiently. (It takes at least 1 year more often two, before
cases are heard).
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80+ cases |
Over the years since 1972,
only 80 cases have been found admissible to the European Court, mainly
because of the requirement that 'local' reminders must be exhausted first.
However, of all these cases
the UK has lost all but one of them.
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Examples of cases taken to
Europe. |
Inadequate 'review' procedures
for the detention of mental patents.
Criminal laws governing
homosexuality.
Corporal punishment in the
Scottish school system.
Insufficient protection of
privacy, especially when it comes to telephone tapping.
Interrogation of IRA suspects
bordering on torture and inhuman treatment by the Army.
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Since 2
October 2000 the Human Rights Act has been UK law, present a UK citizen
who feels wronged no longer has to "go to
Strasbourg, but
can still do so if they feel justice has not been done in the UK courts. |
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A brief overview of Civil Liberties
and Limits |
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Natural Law |
Law is not completely a matter
of human enactment; it also includes natural law. The best-known version
of this view, that God's law is supreme, has had considerable influence in
the United States and other western societies.
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The civil rights movement |
At least partially inspired by
the belief in natural law. |
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Law should serve to promote
human dignity |
By the enforcement of equal
rights for all. Muslim societies also embrace a kind of natural law,
which is closely linked to the religion of Islam.
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Freedom of the Person |
Clear limits like drinking and
driving, mugging, assault etc.
Police powers - of arrest at
Common Law or Statute
Stopping searching persons or
vehicles
Detention and questioning,
codes of conduct (PACE)
Arrest powers of customs etc.
and citizens arrests
Emergency Powers - e.g.
Northern Ireland.
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Freedom of Property |
Subject to taxation, including
council tax, inheritance tax
Police rights of entry with or
without warrant - council officials, meter readers etc. etc.
Powers of mail interception
and telephone tapping.
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Free Elections |
Secret ballot
Some limits on candidature and
entry on electoral roll.
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Freedom of Speech and Writing |
Subject to defamation law,
slander & libel and Official Secrets Act.
Press subject to Press Council
and "D" Notices
BBC & ITV a Cinemas subject to
some censorship
Race Relations Act 1976.
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Assembly & Association |
Public Order Act 1936
banned political uniforms, regulates conduct in public (meetings and other
places)
Public Order Act 1986
gave Police much wider Controlling powers
CJ & P Order Act 1994,
tightened up on raves, hunt saboteurs, travellers on land, growing
criminalisation of trespass.
Residual offences like
obstructing the Police.
Offences of Conspiracy,
affray, riot, violent disorder etc.
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