How well are Rights protected in the UK?
How effective is the judiciary at protecting civil liberties?
What has been the effect of the Human Rights Act? Has it worked?
Recent changes such as the Human Rights Act, Freedom of Information Act and Equality Act have and the creation of a Supreme Court has led to the suggestion that there is now a 'rights-based culture' in the UK.
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)
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).
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 it was not explicitly covered by common law. It seemed that 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. On the other hand it is worth noting that Mosley failed in a subsequent action in 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.
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).
The Blair Government saw accusations about the growth of authoritarianism in the UK. The 2007 film, Taking Liberties, which examined the Blair government's record on civil liberties, even warned about the emergence in the UK of a 'police state'. 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.
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 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!
Essay: How effective are the judiciary at protecting civil rights in the UK (30) Edexcel/AQA A Level
The UK judiciary has several methods at its disposal that provide an effective protection of civil liberties in the UK. However, in practice, there are several shortcomings that make these protections weak in the face of Parliamentary pressure, which will be demonstrated in this essay.
In terms of rights protections, perhaps the most important development in the protection of rights in the UK has been the installation of the European Convention on Human Rights into UK law via the Human Rights Act 1998. This act effectively has provided a concrete document that outlines the rights of citizens. Since the passing of this act, judges have been able rule more confidently based on the legislation rather than using complex declarations of the common law via precedents. The increased ease for judges and clarity for citizens has increased the effectiveness of rights protection by the judiciary because now the judiciary can use articles in the HR Act to rule in favour of individuals. For example, in the case of Catherine Zeta Jones v. Hello Magazine 2001, the court was able to rule clearly that the article 8 right to privacy outweighed the magazine's article 10 right to expression and thus Zeta Jones' wedding was allowed to remain private. This clearly shows an effective protection of liberty by judges.
Furthermore, a vital protection of liberties can be exercised via judicial review. Judicial review is a process that is conducted in the Supreme Court that hears an appeal over the lawfulness of a case. It is not focused on the rights and wrongs of a case, this would be a case for appeal courts following the above methods, judicial review is simply an examination of the lawfulness of a case. For example, in the case of Home Secretary v. AP 2010 an appeal allowing the government to detain AP on a control order was taken to the Supreme Court to review its lawfulness. The Supreme Court ruled that in fact, based on the 2008 JJ case as a precedent, the appeal court's ruling in fact constituted a breach of article 5, and that the article 5 interests also contributed to breaches under article 8 of the act. The resulting ruling was that the government control order was 'ultra vires' and had to be rescinded. In this way, the judiciary's ability to reverse executive action by ruling it beyond its powers provides a very effective protection of liberties in the UK. Other examples of ministers being ruled ultra vires and ordered to reverse actions following judicial review include the freezing of terrorist assets with parliamentary approval in 2005, and more recently the reversal of Theresa May's immigration points system which again had not consulted Parliament.
Finally, if both the above methods fail then the individual can take their appeal to the European Court of Human Rights. Rulings from Europe are effectively binding on government and often defend the individual. Examples include the Hurst case in 2004 where voting bans for prisoners were ruled in breach of the ECHR, and more recently in 2012 with the blocking of Home Office attempts to deport terror suspect Abu Qatada to Jordan. Both of these cases have proved effectively binding on Parliament and while the prisoners votes issue is still ongoing, Qatada has avoided deportation since 2001 via the courts. This shows the huge protections that judges can impart on civil liberties.
On the other hand, the sovereignty of Parliament does provide a large hindrance to the judiciary's ability to protect liberty. Acts of Parliament are binding on all bodies within the UK, including the Supreme Court. The sovereign status of Parliament puts it above the judiciary, and if a ruling is passed that the government do not like, they can always legislate to avoid the ruling. This was seen in 2005 when in response to the Belmarsh case the government passed the 2005 Prevention of Terrorism Act. This act allowed the use of control orders which got around the judicial ruling banning detention without trial. This shows that the sovereignty of Parliament hinders the judiciary's ability to protect liberty.
In addition to this, judges cannot be pro-active in Britain and must wait for appeals to come before engaging in their protective role. The Belmarsh case of 2004 was 3 years after the original 2001 Anti Terrorism Act and was not brought until the pressure group Liberty brought the case forward in behalf of the detainees. This means that erosion of civil liberty can stand for years until someone challenges it, making the effectiveness of judges appear weak.
Finally, due to the lack of an entrenched constitution, erosion of civil liberty is very easy for the government to do, and very difficult for judges to reverse. Labour's range of anti-terror laws followed by ID cards, the DNA database and expansion of CCTV all were programs that the judges could do nothing about. The sovereignty of Parliament and the implicit nature of the liberty erosion in these bills made it impossible for the judges to overturn any of these provisions, even though they constitute a clear breach of privacy and liberty. The fact that it took subsequent acts of Parliament to overturn these measures shows that while judges can act like an irritation, if Parliament is resolved it can do anything, including scrap the Human Rights Act. This hinders the effectiveness of the judiciary to protect liberty, because if they had outright power to strike down laws like the US Supreme Court, the protection would be far more extensive and effective.
In conclusion, it is clear from the evidence that on a day to day basis rights are generally fairly and effectively protected by the judiciary. The national debate over whether judges have too much power in backlash to the Abu Qatada situation is evidence that in fact judges do effectively protect civil liberties. However, with the drawbacks highlighted, all it takes is for a resolved Parliament to decide national security is under threat for them to erode liberty at will, with the judges powerless to strike down law. For this reason, there remains an underlying ineffectiveness in what the judges can do to protect liberty in the UK.
A grade 'A' essay- which was written in timed conditions over 45 minutes