#14668 - Human Rights In The Uk Pre 1998 - GDL Constitutional and Administrative Law

_______________________________________________________

Key Themes

• Relationship between the unwritten UK Constitution and Civil Liberties/Human Rights

  • Most other parties to ECHR have entrenched constitutions

• Shift in emphasis from political to legal constitutionalism – having something formal

• Enhanced role of the Courts & more judicial presence in political matters

• Encroachment of Parliamentary sovereignty

• Tensions between the judiciary & executive

Pre-1998 Protection

Was there adequate protection of civil liberties before HRA?

Magna Carta

• Peace treaty between King John & the Barons

• 1297 version in the statute book

• Not a true continuum from magna carta to HR today

• Protection of liberties of the Church; privacies of London; right to trial by jury

• Annulled 3 months after conception

Is the Magna Carta used as a counter to HR - shying away from a decentralised authority when, they say, there has been a constitutional history of human rights protection in UK?

Bill of Rights

• Jurors = freeholders

• Ban on cruel or unusual punishment

Distinction between Liberties & Rights

Liberties:

• Residual power i.e. whatever is not unlawful is lawful

• Absence of state power to interfere, but no positive action required by the State

• Scope of lawful conduct not fixed - much room for Parliament to legislate to make conduct unlawful?

Rights:

• Rights may require the State not to interfere and/or positively to do certain things

• Conduct is lawful because law grants a specific right to engage in it

• Scope of lawful conduct fixed - higher limitations on Parliament

Why was the ‘liberty approach’ deemed inadequate?

• Limited protection: the residual nature of liberty does not impose an obligation on the State to protect it

• Not easy to ascertain what constitutes lawful conduct (Am I allowed to do X)?

• Liberties are at constant risk of erosion: no clear legal boundaries means lawmakers may continue to impose an increasing number of restrictions

However the distinction was not really this clear cut: pre-1998 courts were not actually completely agnostic about the freedoms they were adjudicating on

Moreover, the HRA does not fully implement a rights-based model. It is nothing like the US or India legal orders - jurisdictions of constitutional supremacy (or as some people argue judicial supremacy).

Courts pre-1998

Constitutional rights in the common law:

• Dicey, ‘The general principles of the constitution (as for example the right to personal liberty, or the right of public meeting) are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the Courts’

• Ivor Jennings: “her majesty’s opposition”

• Smith’s Judicial Review rights conferred by common law:

  • Right to life

  • Right to liberty of the person

  • Right to the delivery of justice in public

  • Right to a fair hearing

  • Prohibition of retroactive criminal punishment

  • Freedom of expression

  • Right to legal advice

  • Prohibition of torture

  • Prohibition of deprivation of property without compensation

  • Privilege against self incrimination

  • Freedom of movement within UK

Protection through tort

Entick v Carrington

Messenger argued that they were acting under authority from Sec. of State

Held: no existing power under which the warrant had been issued; the search was therefore illegal

What about when there is no cause of action in tort?

Malone v MPC

In a Crown Court prosecution of the plaintiff, one of five defendants charged with handling stolen property, the prosecution admitted that there had been interception of the plaintiff's telephone conversations on the authority of the Secretary of State's warrant. The plaintiff issued a writ claiming inter alia that such interception had been, and was, unlawful, and he sought by motion an injunction against the Metropolitan Police Commissioner to restrain interception or monitoring of telephone conversations on his line. It was agreed to treat the motion as the trial of the action and, instead of the relief claimed in the writ, to seek relief in the form of declarations which, as finally settled, were grouped under the following heads:

(1) that interception, monitoring or recording of confidential conversations on the plaintiff's telephone lines without his consent, or disclosing them to third parties, or making use of them was unlawful, even if done pursuant to a warrant of the Home Secretary, and disclosing details of telephone calls was similarly unlawful; that, in the alternative, all such interception, monitoring or disclosure was unlawful, where made without the plaintiff's consent, to any officer in the Metropolitan Police, the Home Secretary or the Home Office or any officer thereof;

(2) that the plaintiff had a right of property, privacy and confidentiality in respect of telephone conversations on his telephone lines, and that interceptions, recordings and disclosures as in (1) were in breach thereof;

(3) that, in the alternative and in relation to human rights, there was no remedy under English law for interceptions, monitorings or recordings of conversations on his telephone lines or the disclosure of the contents thereof to third parties;

(4) that interceptions and monitorings of his telephone lines violated article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (which entitled everyone to "respect for his private and family life, his home and his correspondence");

(5) that, in the alternative, there was no effective remedy in the United Kingdom for any such violation of his private and family life, his home and his correspondence.

Held: (1) that under R.S.C., Ord. 15, r. 16, the court's power to make declaratory judgments was confined to matters justiciable in the English courts, and the binding declarations which it could make under the rule were declarations as to legal or equitable rights and not moral, social or political matters; that, accordingly, since the Convention of Human Rights had the status of a treaty which was not justiciable in England, and the rights claimed under article 8 of the Convention were not legal or equitable rights, the court had no power to make any declaration as asked under head (4); and that the court in its discretion would make no formal declaration under heads (3) and (5) but would dismiss the claims

He sued at Strasbourg. The nature of a treaty in a dualist states means that no duties are directly applicable on emanations of the state. From ‘68 there could be direct access to Strasbourg.

This is a clear inadequacy of the protection afforded by tort

Protection through statutory interpretation

Courts apply ‘principles of legality’ in JR cases where public authority claims to have statutory right to interfere with common law right

Pierson

Double murder of parents. Sec. of State wanted to increase jail time

Was this lawful lawful i.e. within his discretion?

Held: (HL) Sec. of State not within his powers to change this - contrary to the fundamental principle of no retrospective legislation especially in the context of criminal liability

Simms
Sec. of State introduced a blanket requirement that journalists signed a declaration that no interviews conducted with prisoners behind bars would be used in their professional capacity

Held: (HL) freedom of speech being the main issue here, the court argued it through the ultra vires principle. The blanket ban was not an exercise of discretion of a case-by-case basis

Right of access to the courts:

• Anisminic (see ‘Judicial Review’ docs) – ‘ouster clause’ – it was found that Parliament cannot have intended to ouster the courts, and entirely bypassed the clause

• Witham - financial barriers to court access

Protection through civil liberties

Beatty v Gillbanks

Salvation army peaceful protest disrupted by Skeleton Army

Held: persons who are lawfully and peaceably assembled could not be convicted of the offence that they did ‘unlawfully and tumultuously assemble with divers other persons . . to the disturbance of the public peace, and against the peace of our sovereign Lady the Queen.’ They did nothing unlawful and the evidence showed that the disturbances were caused by other people antagonistic to the appellants. ‘What has happened here is that an unlawful organisation has assumed to itself the right to prevent the appellants and others from lawfully assembling together, and the finding of the justices amounts to this, that a man may be convicted for doing a lawful act if he knows that his doing it may cause another to do an unlawful act.’ Per contra the Court said ‘If this disturbance of the peace was the natural consequence of acts of the appellants they would be liable, and the justices would have been right in binding them over.’

Critiques of common law protection:

• Common law rights too weak

• Common law offers protection only in certain circumstances

• Common law rights focus on negative (formal) equality rather than substantive notions of rights as steeped in economic liberalism

• Erratic nature of judgments (i.e. mixed judicial record)

  • J.A.G. Griffith, The Politics of the Judiciary, judges as inherently conservative (e.g. CCSU 1984) - people’s rights are best protected by Parliament, which is a democratic institution, rather than the judiciary who are from a narrow social background; one that is associated with conservative values

Parliament’s attitude to the Common Law

The principle of legality does not prevent Parliament from interfering with a common law right through statute, as long as such interference is in express terms that make...