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What are rights?

• ‘Rights’ refers to the freedoms and entitlements of citizens in a particular political and legal system.

• They specify what members of the public are allowed to do, and the areas of their lives into which the authorities are not able to intrude.

• A right can also be an entitlement – something public institutions are obliged to provide for all their citizens, such as a fair trial or personal security.

• Rights establish the relationship between public authorities and the public, giving expression to general principles about what they owe to and can expect of each other.

• Rights are a constitutional issue because they place legal limits on the power of public authorities over their citizens, and set out fundamental things those authorities must ensure are provided and protected.

• It is usually the role of judges to uphold rights and make sure other institutions and authorities respect them.

• In this sense, rights are a core aspect of the political system – helping to define the responsibilities of three key institutions: the judiciary, the executive and the legislature.

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• The European Convention for the Protection of Human Rights and Fundamental Freedoms (or European Convention on Human Rights, ECHR) was an international treaty agreed in 1950.

• This followed the systematic violation of human rights that occurred before and during the Second World War (1939-1945).

• The ECHR committed the governments that signed it to upholding the rights and freedoms contained with it.

• The UK was involved in the drafting of the Universal Declaration of Human Rights and has been signed up to the Convention since its beginning.

• In 1959, a European Court of Human Rights, based in Strasbourg, was established to review alleged violations of the rights contained in the Declaration.

• UK citizens that believe a public authority has infringed on their rights have been able to take their case directly to the court in Strasbourg since 1966.

• The ECHR is separate from the European Union (EU) and the Court of Justice of the European Union.

• Although the UK has left the EU, it remains signed up to the ECHR.

The European Convention on Human Rights (ECHR)

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The Human Rights Act 1998

• The Human Rights Act, passed in 1998 by the recently elected Labour government, placed the rights and freedoms contained in the ECHR in domestic UK law.

• This meant that from 2000 (when the Act took effect), it has been possible to challenge public authorities in UK courts for possible violations of the rights contained in the Convention.

• Previously, these cases were heard at the European Court of Human Rights in Strasbourg.

• Some of the key rights transferred at this point into UK law were:

• the right to life (article 2);

• freedom from torture and inhuman or degrading treatment (article 3);

• the right to liberty (article 5);

• the right to a fair trial (article 6);

• the right to respect for one’s private and family life (article 8);

• freedom of thought, conscience and religion (article 9);

• freedom of expression (article 10).

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The impact of the Human Rights Act

• The Human Rights Act is often perceived as having substantially changed the UK constitution.

• It gave UK judges new authority to review whether public institutions were complying with the rights in the ECHR.

• In this sense, many argue it changed the balance of power in the UK constitution, giving the judiciary a bigger role and making them more powerful.

• Judges have long been able to review whether the decisions of ministers and others are within the bounds of the law.

• This practice is called judicial review.

• However, the Human Rights Act granted judges new grounds for assessing whether the actions of public authorities are legal.

• In particular, it gives them the power to decide whether primary legislation is compliant with the rights set out in the ECHR.

• If they find that a law breaches one of the Convention rights, they can issue a ‘declaration of incompatibility’.

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• Unlike in the United States, the Supreme Court of the United Kingdom (which hears the most important constitutional cases) does not have the power to declare an Act unconstitutional and overturn it.

• Rather than striking down legislation, a declaration of incompatibility gives government and Parliament the opportunity to change the offending statute.

• But they are not obliged to change the law in these circumstances (although, in the past, they nearly always have done).

• In this sense, the UK’s most senior judges remain less powerful than their counterparts in many other countries.

• Nonetheless, the Human Rights Act has undoubtedly expanded their remit, thus changing the nature of the UK constitution.

• This development is significant from the point of view of the doctrine of parliamentary sovereignty.

• Opinions differ on whether or notthe Human Rights Act amounts to an interference with this doctrine, since the courts can find an Act of Parliament incompatible with the Convention, but cannot actually strike it down themselves.

The impact of the Human Rights Act continued

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• Some have criticised the Human Rights Act for giving too much power to judges.

• They argue that it empowers judges, who are not elected, to rule on questions of policy, which should be decided by those who are democratically elected, through political channels.

• The Act has also been attacked for supposedly hindering the government’s efforts to keep people safe, by providing rights protections to those who pose a risk to the public.

• In 2006, David Cameron, then Leader of the Opposition, pledged to ‘scrap, reform or replace’ the Human Rights Act.

• This announcement came after judges ruled that deporting nine Afghan men who had highjacked a plane to their country of origin would breach their human rights.

• Cameron said at the time that the Act, ‘has actually hindered the fight against crime, it has stopped us responding properly in terms of terrorism, particularly in terms of deporting those who may do us harm in this country’.

• The Act has been debated since, though attention is more often directed towards the European Convention on Human Rights today.

A controversial Act?

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• We can see the Human Rights Act in action in the Belmarsh Prison case (2004).

• In the Belmarsh case, the Law Lords (the predecessor of the Supreme Court) found that section 23 of the Anti-Terrorism, Crime and Security Act 2001 was incompatible with Article 5 of the European Convention on Human Rights (the right to liberty).

• The case challenged the power of the Home Secretary to indefinitely detain non-UK citizens without a trial if they were considered a risk to national security.

• It was originally brought by nine foreign nationals, suspected of being potential terrorists, who were being held in Belmarsh prison.

• Article 15 of the ECHR allows governments to suspend certain rights if there is a public emergency or war and the suspension of rights is strictly necessary to deal with the emergency situation.

• Coming in the wake of the 9/11 terror attacks, a majority of the Law Lords did not find that indefinite detention without trial was strictly necessary. Therefore, the right to liberty remained.

• Although this judgement did not mean the striking down of the law, which remained in force, it pushed the government into passing new legislation.

The Belmarsh judgment 2004

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• Some argue that rights should be ‘entrenched’ in the UK system.

• This means that they would be given a special status and it would be harder to change or get rid of them.

• Proponents of rights entrenchment argue that human rights embody basic freedoms that everyone is entitled to, regardless of the political context.

• Human rights are universal and fundamental, they claim, and it should not be possible to dilute or tamper with them, even if a democratically elected government should want to do so – rights are there to protect minorities from ‘the tyranny of the majority’.

• However, in the UK system, critics argue there is no such protection. In accordance with the doctrine known as ‘parliamentary sovereignty’, there are no checks on the law-making powers of Parliament, as Parliament is sovereign within the UK system.

• Therefore, should Parliament wish to do so, it could repeal, replace or amend the Human Rights Act and leave the European Convention on Human Rights.

• Theoretically, it could then pass Acts of Parliament limiting basic freedoms, such as the right to liberty and freedom of expression. This leaves our basic rights vulnerable.

Should there be an entrenchment of rights?

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• Those who believe this is an unsatisfactory state of affairs often propose making it harder to alter existing rights legislation, through mechanisms such as requiring a supermajority in Parliament or a referendum.

• Others argue that human rights should be included in a codified constitution for the UK, which would also require more demanding procedures to change.

• This would make it much more difficult for Parliament to make laws that conflict with human rights, as they would have to amend the UK’s codified constitution first.

• However, others oppose this viewpoint, and say that entrenching rights would be undemocratic, as it would make it harder for elected politicians to change rights-based legislation even if they have a mandate from the public to do so.

• Some believe that rights legislation should be open to straightforward revision so that it can change in line with developments in the way we view and understand human rights.

• Entrenching rights may make it harder to add additional rights in the future, for example.

• Some opponents worry that rights entrenchment would take the UK closer to the American system, where judges can strike down laws.

Should there be an entrenchment of rights? Continued

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• Some have argued that the Human Rights Act has changed the UK constitution to make it more like the Constitution of the United States.

• They say it has given judges more power over politicians, thus making the constitution more ‘legal’ and less ‘political’.

• It is true that through the Human Rights Act, Parliament has given the courts more grounds on which to review and assess its decisions.

• Judges have more discretion to rule on political matters, if they believe the rights in the ECHR have been affected.

• But the Human Rights Act does not function in the same way as the American Bill of Rights.

• Unlike the Bill of Rights, which forms part of a codified constitution (i.e., the ‘supreme law’ of the US), the Human Rights Act has the same formal status as any other Act of Parliament.

• Furthermore, as we have seen, if judges find that a piece of legislation breaches one of the Convention rights, they can issue a ‘declaration of incompatibility’, but they cannot declare the law void.

• Parliament remains the final – or ‘sovereign’ – arbiter.

Does the HRA give judges too much power?

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Rights

• Visit The Constitution Society website https://consoc.org.uk for up to date analysis on the UK’s evolving constitution.

• The Constitution Society is an independent, non-party educational foundation which works to promote informed debate about constitutional reform.

• We take no position on specific reform proposals but advocate better legislative standards and oppose ill-considered, piecemeal change.

About The Constitution Society