How well are Rights protected in the UK?

Recent changes such as the Human Rights Act, Freedom of Information Act and Equality Act  and the creation of a Supreme Court has led to the suggestion that there is now a 'rights-based culture' in the UK.

In 2001 Parliament established the The Joint Committee on Human Rights which as a consequence of the HRA review the application of incompatibility orders which result from a conflict between the Act and existing or proposed legislation. The Committee is also an important watchdog with a general function of reviewing all new laws and thier impact on human rights with regard to common law and international law.

But the HRA has limitations,  while all new legislation must be compliant with the act and judges can declare earlier acts of Parliament incompatible with it they  cannot legally compel Parliament to make changes. This is because of the all-important concept of parliamentary sovereignty so the HRA is not entrenched (i.e. it's not a form of higher law like the US Bill of Rights)

So to be clear: The UK does not have a Bill of Rights!

Evidence for  rights based culture might be  an increased use of judicial review. The number of reviews rose from around 4240 in 2000 to around 15,600 by 2013. Examples of successful challenges to government policies include High Court rulings that retired Gurkha soldiers should be allowed to settle in the UK (2008), and that the government had not consulted fairly on compensation for people affected by the planned High Speed Rail link (2013).

Judicial Review Cases

A prominent example of judicial review — sometimes called `judge-made law' — is the issue of privacy. Judges have been accused of effectively creating a privacy law through the way they have interpreted the Human Rights Act. In a series of high-profile court cases, they appeared to give priority to Article 8 of the European Convention on Human Rights (the right to privacy) over Article 10 (the right to freedom of expression), as claimed by the press. This occurred even though specific legislation on the subject had not been passed by Parliament, and was not a prominent feature of common law. This called in to question the principle of the Rule of Law since wealthy individuals, who could afford to take legal action, had an unfair advantage. For example, in 2008 the High Court awarded Max Mosley, the head of the Formula 1 motor racing organisation, substantial damages when the News of the World published a story about his sex life, which he argued had breached his privacy. Max Mosley failed in a subsequent case at the European Court of Human Rights, which refused to rule that newspapers should notify people before printing stories about their personal lives.

A criminals' charter?

Another serious fault for Conservative critics of the Human Rights Act is the way that it seems to show favour to undeserving individuals, rather than protecting the legitimate freedoms of UK citizens. The Conservatives have argued for many years for the replacement of the act with a new 'British Bill of Rights', which would establish the supremacy of British courts over the European Court of Human Rights. The case of Abu Qatada illustrates the frustration caused by the way in which the Human Rights Act was implemented.

 Unelected judges with too much power? - Judicial Tyranny

judicial review may be a vital means of defending citizens' rights, enabling the legality of government actions to be properly scrutinised but its critics argue that it places too much power in the hands of unelected and unaccountable judges.

Is the UK Supreme Court too political?

 The Judicial Review and Courts Act 2022 

The HRA has not prevented an attack on civil liberties in recent years

After the 9/11 terror attacks in the USA in 2001, and the 7/7 Underground and bus bombings in 2005, the HRA did not stop the government limiting civil liberties in the interests of protecting the wider community. Ministers argued that they were entitled to detain terror suspects without trial on the grounds that a national emergency existed. In December 2004, in the Case of the Belmarsh 9, the Law Lords (the highest court in the land before the creation of the Supreme Court) ruled that indefinite detention of foreign nationals, on suspicion of involvement in terrorism, was discriminatory. Faced with this legal challenge, the government passed a new law to introduce a system of control orders that enabled suspects to be closely monitored, such as through electronic tagging, a requirement to report to the police and removal of mobile phones and Internet access. Control orders were kept in place, despite adverse rulings by judges, until 2011 when the coalition government replaced them with a modified version known as Terrorism Prevention and Investigation Measures (TPIMs).

Have civil liberties been under threat? If so, why has this happened?

The Labour government's record on civil liberties between 1997 and 2010 was a mixed one. In the first place, this period witnessed major advances in individual rights, widely welcomed by groups campaigning on civil liberties issues, such as Charter 88, Liberty, and Freedom and Law. The Human Rights Act was the most significant example of this, but others included the Freedom of Information Act 2000, which marked a major advance in open government and helped to establish a public right to know. Other examples of a strengthening of rights include the establishment of the right to roam through the Countryside and Rights of Way Act 2000. This was a culmination of many generations of campaigning by ramblers (Ramblers Association) and civil liberties groups.

On the other hand, Labour's critics drew attention to its civil liberties 'blind spot', reflected in the growth of legislation that expands the power of the state and weakens or removes civil liberties or individual rights. Various measures have contributed to this 'drift towards authoritarianism'. For example:

 The right to a jury trial was restricted in 1999 by new rules that made it more difficult for people accused of theft, burglary and assault from opting to be tried by a Crown Court (where juries sit), rather than by a magistrate.

Detention was introduced for asylum seekers whose claims have been refused, and access to the benefits system was replaced by shopping vouchers for refugees.

 Public order legislation led to restrictions being imposed on the right to protest.

Anti-social behaviour orders (ASBOs), first introduced in 1999, imposed a range of restrictions on (usually young) 'offenders', often on the basis of hearsay evidence and in the absence of a jury.

The Identity Card Act 2006 provided for identity cards to be phased-in on a voluntary basis from 2009 (although these plans were abandoned after Labour's 2010 defeat).

However, the government's most controversial measures were its anti-terrorism legislation, passed in the aftermath of 9/11 (the 2001 terrorist attack on New York and Washington) and 7/7 (the coordinated 2005 terrorist attacks on London). This gave the police the power to hold suspects for 28 days without being charged (ie told what they were suspected of doing) if they were suspected of terrorism offences.

Changes to Civil Liberties under New Labour  

DNA database, Double Jeopardy (2003) Anti-Terror laws, end of jury trials for Serious Fraud.

 Coalition reforms, Freedom Bill, reversing 28 days, green paper on 'secret courts',  and the Counter Terrorism Act  2015 (Amended 2016)

However, some restrictive measures have been abandoned in the face of parliamentary and public opposition. For example, in November 2005, the Blair government's proposal to extend the period that a suspect could be held before being charged, from 14 to 90 days, was defeated in the Commons. The government then compromised on 28 days and abandoned a subsequent attempt to increase it to 42 days, following a defeat in the Lords in 2008. Under the coalition, the 28-day period was halved, and the Labour government's plan for compulsory identity cards was scrapped.

However, the public has been remarkably willing to sacrifice some liberties at a time of heightened concern over security. Governments have tended to place the safety of society above the protection of individual rights. This explains why pro-human rights pressure groups such as Liberty have had limited success in deflecting government policy. For example, Plans for a British Bill of Rights, Legal aid cuts , Internet Surveillance and Extending Secret Courts-2013 Justice and Security Act (Closed Material Practices), which permit terrorist suspects and major criminals to be tried without the evidence against them being disclosed in full. The passage of the Investigatory Powers Bill — the so-called 'Snoopers' Charter' —which increases the power of the intelligence agencies by obliging Internet companies to store information about customers' browsing history.

In 2016, Parliament passed the Investigatory Powers Act, which authorises the retention of personal electronic data and its access for law enforcement.

 In 2020, Ed Bridges and the pressure group Liberty brought a case against South Wales Police over whether it could use automatic facial recognition technology. In its judgment, the Court of Appeal ruled that more care should be taken in how the technology is used. However, the benefits to society are ‘potentially great’ and the threat to the individual’s privacy ‘minor’.

In 2020 after a terrorist suspect was released from prison under an early release scheme designed to reduce the prison population, who went on to carry out an attack, the government promised an emergency bill to end early release. The bill was delayed by the COVID crisis but in May the government announced the Counter-Terrorism and Sentencing Bill, which as promised ended early release but also gave the police new powers to impose TPims. A TPim imposed strict limits on an individual's freedom. The new law would mean this could be imposed for an unlimited time ( currently they are limited for two years) and the bill would reduce the threshold of evidence to mean aTPims would only need a 'balance of probability' ie - you could be a terrorist!

• Counter-Terrorism and Sentencing Bill

• Reaction to the London attacks

• TPims Explained

 The Johnson government’s Police, Crime, Sentencing and Courts Act 2022  was designed to limit the impact of public protests and has thus generated significant opposition from civil liberties groups.

 In the Queen’s Speech (2022) the Johnson government controversially committed to introducing a British bill of rights, replacing certain elements of the Human Rights Act, so that ‘there is a proper balance between the rights of individuals, our vital national security and effective government, strengthening freedom of speech’.The Human Rights Reform Bill received its first reading in 2022 but has not progressed.The influential Joint Committee on Human Rights said a planned Bill of Rights Act would restrict certain protections "the government finds inconvenient". Liz Truss's government  shelved plans for Human Right Bill with was design designed to give ministers the power to ignore human rights rulings from the European Court of Human Rights (ECHR).  

How well are  rights are protected by:

• Legislation/Parliament: 

• During the pandemic laws were passed with limited scrutiny. At the start of the crisis, the Coronavirus Act formed the central part of the government’s response to COVID-19. The Act was passed by Parliament in just 4 working days, in March 2020. The speed at which it was passed might suggest that it was subjected to relatively little parliamentary scrutiny, demonstrating the strength of the executive. The Act has given the government an enormous range of powers, largely to impose new regulations in response to COVID-19. These can be introduced without parliament scrutiny. 

• Even in non pandemic time Parliament is dominated by the executive. How well does Parliament fulfill its functions?

Recent Limitations Placed on Rights

Elections Act 2022 

The Police, Crime, Sentencing and Courts Act 2022  Gives more power to the police, criminal justice, and sentencing legislation, and it encompasses restrictions on "unacceptable" protests, crimes against children, and sentencing limits. The law is controversial, and led to protests under the slogan "Kill the Bill" in various British cities before it had come into force. It has received fierce criticism both locally and internationally by various politicians, human rights groups, journalists and academics, due to the impact on free expression, freedom of speech and the right to protest in the United Kingdom There are new rules in the act that allow police to step in if noise from a protest is causing issues for people or disrupting an organization's activities in the area. In such cases, the police can set conditions but not completely stop the protests. This decision will consider factors like location, duration, and the impact on sensitive places like schools or medical facilities, and will vary case by case. Regarding obstructing a highway, the penalty has been raised from a £1000 fine to an unlimited fine and/or six months in prison. This change means the offense can happen even if the police or relevant authority have closed the highway. This may seem like a step back after the House of Lords ruling in DPP v Jones supported protesters' rights to peacefully gather on a highway. A new provision has been added to update the Public Order Act 1986 to make sure access to essential services is not disrupted. It is now illegal to disrupt the supply of time-sensitive products to consumers, block access to crucial supplies, communication, worship places, transportation, education, or healthcare services.