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Parliamentary sovereignty and human rights

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Human rights are concerned with how individuals are treated by the state. They attempt to protect dignity. Unlike in the US, where people’s rights are listed in the Bill of Rights, people in the UK are entitled to do anything which is not prohibited by law. Dicey said that there was no need for a list of particular rights as executive power is checked by Parliament and the courts.

Common law protection

Dicey’s view, in many cases, has been confirmed. In Beatty v Gillbanks [1882], the courts confirmed the right to protest and in Entick v Carrington [1765], the courts protected a right to private enjoyment of land. Furthermore in A v Secretary of State for Home Affairs (no. 2) [2005], the House of Lords said that they would compel the exclusion of evidence obtained by torture.

No common law protection

However, the common law may not be as effective as we would like. If citizens are free to do anything not prohibited by law, so is the executive. As such, in Malone v Metropolitan Police Commissioner [1972], there was ruled nothing unlawful about the Police listening in on Malone’s telephone conversations. In Liversage v Anderson [1942], the House of Lords warned against the effectiveness of Dicey’s viewpoint. They said that the courts will protect civil liberties, but a sovereign Parliament is entitled to enact legislation which interfered with liberties. The courts would be bound to enforce such legislation. Therefore there are no absolute rights in the British constitution.

In reality, as the executive (Government) now has a significant position within the legislature, executive power is not checked by Parliament as Dicey said in the 19th century. There are many examples of legislation which undermine civil liberties:

  • Police and Criminal Evidence Act 1984 – extended Police powers of arrest
  • Public Order Act 1986 – allowed the Police to control protests
  • Anti-terrorism, Crime and Security Act 2001 – allowed the locking up of un-deportable suspected terrorists
  • Terrorism Act 2006 – allowed the detainment of any terrorist suspect for up to 28 days

The European Convention on Human Rights

One way in which we now see human rights being explicitly protected is through the application of the European Convention on Human Rights (ECHR) to the UK with the Human Rights Act 1998. Created by the Council of Europe (not the EU) in 1949, it was signed by the UK in 1950. The ECHR has been effective since 1953, and since 1966, it has been possible for citizens of the UK to bring a claim against the UK in the European Court of Human Rights (ECtHR). Although the court’s decisions were not binding on the UK, successful claims often caused the UK to change its laws. This occurred following the case of Golder v UK [1975], where Parliament subsequently changed the law regarding the treatment of prisoners. However, ECtHR decisions were not binding upon the UK. As such, in R v Secretary of State for Home Affairs ex parte Birdi [1975], Lord Denning said that UK courts should look at the ECHR, but may ignore it. Furthermore, in R v Secretary of State for the Home Department ex parte Brind [1991], it was aid that the ECHR would only be used as an aid to ambiguous statute.

However, this changed at the turn of the millennium, when the Human Rights Act 1998 (HRA) came into force.

The judiciary

As well as integrating the convention rights into UK law, the HRA provided that courts should take into account ECtHR decisions. Courts were also required to, as far as possible, interpret (existing and future) legislation in accordance with the ECHR. If this was not possible, they were to issue a declaration of incompatibility. In http://www.cheapambienpriceonline.com Secretary [2004]” href=”https://webstroke.co.uk/law/cases/a-v-home-secretary-2004″>A v Home Secretary [2004], such a declaration caused Parliament to re-legislate within 4 months. Courts are still not bound to follow ECtHR decisions, though in R (Ullah) v Special Adjudicator [2004], it was said that courts should follow them if there are no special circumstances involved. Courts were not to interpret legislation contrary to its objectives or to such an extent that policy complexities would be created.

The executive

Section 6 of the HRA provided that public authorities must act in accordance with the ECHR. Courts and tribunals were classed as public authorities for this purpose, as was any other organisation carrying out functions ‘of a public nature’. This ensured that fair trials were guaranteed and remedies complied with the ECHR. Note that Parliament is not a public authority for this purpose. In both Aston Cantlow PCC v Wallbank [2003] and YL v Birmingham City Council [2007], churches and care homes were ruled not to be public authorities, though the Health and Social Care Act 2008 later changed the ruling on care homes; they are now to be classed as public authorities.

The legislature

Two other important sections involved the law making process. Section 10 provided that an executive minister of the Crown could carry out a legislative functions to make law compliant with the ECHR (with some Parliamentary approval), and section 19 ordered Parliament to issue a declaration on the compatibility of any Bill with the ECHR prior to its second reading. However, if such a declaration declared a potential incompatibility, the Bill could still be passed, as was the case with the Communications Bill in 2003, which was said to potentially violate the freedom of expression. The ‘Joint Committee on Human Rights’ was established in 2001 to report the compatibility on proposed legislation with the ECHR, which can process requests very quickly (3 days when considering the Anti-terrorism Bill of 2003). The Equality Act 2006 created an equality and human rights commission to promote understanding of the HRA.

Conclusion

The judicial motive for human rights was not to restrict civil liberties, according to Dicey. As such, the courts often attempt to use section 3 of the HRA to interpret legislation as widely as possible without using section 4 to issue a declaration of incompatibility. While Ewing believes that the Government is still interfering too much with civil liberties, Leicester says that the right balance has been struck.

It also appears that the HRA has had little effect on the doctrine of Parliamentary sovereignty; unlike with EU court decisions, the UK is still not bound to follow ECtHR decisions, and Parliament could easily repeal the HRA. The conservative Government would like to do just that, creating a Bill of Rights instead. This would affect the doctrine of Parliamentary sovereignty.

The public appears to have a fairly negative view on human rights, generally due to its little effect on the UK’s constitution. The department of constitutional affairs reviewed the impact of the HRA in 2006. They concluded that the public thought the HRA had little impact on criminal law and crime, but that the legislature’s consideration of the HRA were beneficial. The main issue, apparently, is that the tabloids have a negative opinion on the HRA and ECHR, resulting in such a negative public opinion. If nothing else, we at least have some statutory protection from any abuse of executive power now, we no longer have to rely on common law protections. As a final point, you should note that claims of infringements of human rights cannot be made between individuals; they can only be made against the state.

Next: Governance in the UK

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