Human Rights Act 1998 – Judicial and Parliamentary and Civil Liberties

Incorporation of ECHR into UK Law – move towards codified legal definition of rights

UK previous reluctance to codify ‘rights’ or ‘civil liberties’

No new rights under the HRA but it broadens access for UK citizens to European appeal

Impact on power of judiciary – check the compatibility of decisions, laws in UK with European Convention.

Impact on behaviour of public bodies aware of the need to be compatible with European Convention

What does this mean for the judiciary?

Judicial Reviews

Case can be brought to High Court if a power of a public body has been challenged as unlawful and for violation of rights on grounds of unlawful, irrational or improper procedure. Doctrine of ultra vires – public actors acting beyond proper power

Cannot overturn Acts of Parliament – Parliament is sovereign

Increase in Judicial Review since early 1980s but more significantly since the introduction of the HRA

‘Declaration of incompatibility’ – revision of legislation in line with Convention or to ‘derogate’ from the Convention.  Therefore the HRA is not binding on Parliament.

e.g. Derogation from Article 5 of HRA 2001-5 to pass tougher anti terror laws

Where has the HRA been used to protect individual rights?

David Blunkett attempted to restrict access to social security for asylum seekers – overruled (2003)

Nine terrorist suspects held without trial at Belmarsh Prison – released – judged that they were held on grounds which illegally discriminated between foreign and UK nationalists (2004)

Decision not to deport murderer of Philip Lawrence when his sentence is complete. (2007)

Recent: Gary McKinnon l- Pentagon Hacker – dispute over his extradition due to medical condition (Aspergers)

Controversial?

Good

Judges upholding individual liberties and rights of unpopular minorities

Will lead to impact on public bodies to be more aware of civil liberties – leading to better trust in govt.

HRA has educated the public more about their rights and encouraged them to be more assertive

Without need for written constitution – civil liberty protection is enhanced.

BUT

Judges are overstepping their traditional role

Interpretations of the HRA are effectively allowing laws to be ‘rewritten’ (quasi legislative powers to an unelected and unrepresentative body?)

Criticism that HRA takes too much account of rights and not enough of the need for civic responsibilities and the need to protect larger society.

Conflict between senior judges and the executive has increased

• Increased human rights culture in senior judiciary
• Increased ability to intervene in politics due to HRA
• Trend – (real?) for governments to expand own powers at cost of civil liberties

Civil Liberties have increased in some ways under Labour

• HRA
• Freedom of Information Act 2000
• Right to roam Act 2000

Civil Liberties have been challenged by Labour

• Public order legislation limiting right to protest
• ASBOs – restrictions based on hearsay evidence and in absence of jury
• ID Card proposal
• Detention without trial –Prevention of Terror Act 2005 (putting control orders on individuals who could not be deported)
• Terrorism Act 2006 – increased power to deport those considered to be promoting terrorism

Why the conflict?

Centres around how you interpret civil liberties

1. Civil liberties are like human rights – always to be upheld, absolute entitlements, belong to the ‘citizen’, a fundamental of democracy – the ultimate guarantee that people can think/act for themselves.
2. Civil liberties are relative – need to set one persons rights against someone elses, the needs of wider society – and balanced against civil duties. You have a right to live without fear, intimidation and violence and the right to life is the most important. In this context the potential victims should be protected more than terrorists suspects.

Belief that Parliament should decide on the correct balance as elected officials – not unelected  judges.

Bill of Rights?

It is suggested that a Bill of Rights might help to reduce the conflict between government and the judiciary – a document that specifies the rights and freedoms of the individual and define the legal extent of civil liberty.

If the Bill of Rights was entrenched it would mean that it would serve as a ‘higher law’ than Parliament and would therefore have huge significance for the role of the judiciary and the wider political system.

See p.282 for more on the pros and cons of a Bill of Rights