1.4 Rights in context

Question 1

What is the contract that citizens of a democracy enter into with the state?

Answer 1

It guarantees them certain rights, and in return they have obligations - some legal, such as obeying the law, paying taxes and performing jury service - some moral, include voting in elections and playing a part in protecting the environment, such as recycling.

‘Active citizenship’ - goes further than further to include offering voluntary service to help community

Question 2

What are ‘rights’?

Answer 2

Legally protected freedoms, also known as civil liberties.

In UK, guaranteed by the 1998 Human Rights Act - was an understanding of people’s entitlement to them long before this.

Broadly accepted that they might have to be limited in time of war or other major national emergency.

Question 3

What do ‘rights’ include?

Answer 3

• Fair and equal treatment under the law - include right to fair trial and peaceful possession of one’s property - freedom from arbitrary detention
• Freedom of expression in speech and writing
• Freedom of conscience, including worshipping as one wishes
• Vote, to stand for election and to join a party or pressure group
• Belong to an association such as a trade union
• Freedom of movement

Question 4

What rights are more contentious?

Answer 4

‘Social rights’ - include right to education, employment, health care and welfare provision.

Question 5

Until the Human Rights Act 1998…

Answer 5

there was no single document that positively set out citizens rights - instead, there were ‘negative rights’ that people were entitled to exercise unless the law explicitly prohibited them.

E.g. - people had right to freedom of expression, subject to laws of defamation and blasphemy.

Some rights were protected by acts of parliament - others were derived from custom or common law.

Question 6

What are the major milestones in the development of rights in the UK?

Answer 6

Magna Carta

The European Convention on Human Rights (ECHR)

The Human Rights Act (1998)

The Equality Act (2010)

Question 7

What is the Magna Carta?

Answer 7

(‘Great Charter’) - document drawn up in 1215 - usually regarded as the oldest statement of rights in the UK.

Presented to King John by nobles who disapproved of his tyrannical rule - original purpose was to limit royal power.
- Many clauses now outdated

One clause establishes the right to trial by jury and to habeas corpus - means literally ‘you may have the body’ in Latin - refers to court order to produce a person before a court so that it can be determined whether they’ve been lawfully detained.

Question 8

What is the clause that that establishes the right to trial by jury and habeas corpus?

Answer 8

‘No free man shall be seized or imprisoned, or stripped of his rights or possessions or outlawed or exiled; nor will we proceed with force against him except by the lawful judgement of his equals or by the law of the land. To no one will we sell, to no one dent or delay right or justice.’

Question 9

What is the European Convention on Human Rights?

Answer 9

ECHR - drawn up in 1950, with the UK as one of its signatories, by the Council of Europe.

Very similar to the UN Declaration of Human Rights - drawn up in aftermath of Second World War.

European Court of Human Rights set up in Strasbourg to hear cases where people felt that their rights had been infringed in their own counties.

UK citizens were allowed to appeal to the Court - it was time-consuming and expensive.

Question 10

What is the Human Rights Act 1998?

Answer 10

Passed by new Labour govt - incorporates the Convention into UK law with effect from 2000.

These rights - including the right to life, the prohibition of torture or degrading treatment, freedom from arbitrary, the right to a fair trial and rights to privacy and family life.

Could now be defended in UK courts without having to go to Strasbourg.

Question 11

What is the Equality Act 2010?

Answer 11

Brought together earlier pieces of legislation that sought to outlaw discrimination and unfair treatment, such as the 1970 Equal Pay Act, the 1975 Sex Discrimination Act and the 1976 Race Relations Act.

Identified 9 ‘protected characteristics’ - age, disability, gender reassignment, marriage or civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

It made it illegal for public bodies, employers, service providers and other organisations and individuals to discriminate people on any of these grounds, in the workplace or in wider society.

Question 12

Why, since the passing of the Human Rights Act, has it often been claimed that the UK has developed a ‘rights-based culture’?

Answer 12

All new legislation must be compliant with the act 0 judges can declare earlier acts of parliament incompatible with it - although they can’t legally compel parliament to make changes.
- Because of parliamentary sovereignty.

Question 13

What is an indicator of the growing prominence of rights?

Answer 13

An increased use of judicial review - the number of them rose from around 4,240 in 2000 to around 15,600 by 2013.

• E.g. - High Court rulings that retired Gurkha soldiers should be allowed to settle in the UK (2008)
• E.g. - that the govt had not consulted fairly on compensation for people affected by planned high-speed rail link (2013)

Question 14

What do defenders of judicial review argue?

Answer 14

That it is a vital means of defending citizens’ rights, enabling the legality of govt actions to be properly scrutinised.

Question 15

What do critics of judicial review argue?

Answer 15

That it places too much power in the hands of unelected and unaccountable judges.

Question 16

What is a prominent example of judicial review?

Answer 16

Issue of privacy.

Judges have been accused of effectively creating a privacy law through the way they have interpreted the Human Rights Act.

In series of high-profile cases - they appeared to hive priority to Article 8 (right to privacy) of ECHR over Article 10 (right to freedom of expression), as claimed by the press.

This occurred despite legislation on the subject not being passed by parliament - no explicitly covered by common law.

Question 17

What is example that suggests that wealthy individuals, who could afford to take legal action, had an unfair advantage?

Answer 17

2008 - the High Court awarded Max Mosley, head of the Formula 1 motor racing organisation, substantial damages when the News of the World published a story about his sex life - he argued this breached his privacy.

On the other hand - it’s worth noting that he failed in a subsequent action in ECHR, which refused to rule that newspapers should notify people before printing stories about their personal lives.

Question 18

What have the Conservatives argued for many years should replace the Human Rights Act, and why?

Answer 18

A new ‘British Bill of Rights’ - would establish the supremacy of British courts over European Court of Human Rights.

Question 19

What is arguably a serious fault of the Human Rights Act?

Answer 19

The way it seems to show favour to undeserving individuals, rather than protecting the legitimate freedoms of UK citizens.

Question 20

What is a case that illustrates the frustration caused by the way in which the Human Rights Act was implemented?

Answer 20

The case of Abu Qatada:

• Radical Muslim cleric living in London since 90s - had made speeches justifying use of violence to promote Islamist cause
• Served time in British hails
• Regarded as threat by security services - ministers wanted to deport him to country of origin, Jordan, where he was wanted for trial

But his legal advisers were able to fight deportation for 8 years on grounds he might be tried using evidence obtained under torture, breach of Human Rights Act

2013 - Jordan pledged not to breach rights - Qatada flown back to face trial - cleared of involvement in terrorist bomb plots in Jordan.

British authorities continued to view him as a dangerous influence.

Question 21

What can the lack of clarity over the definition of rights lead to (with example)?

Answer 21

Conflicts between pressure groups and individuals.

• E.g. - Campaign for Freedom of Information, that worked to help bring about Freedom of Information Act (2000), which gives public right to access data held by public authorities
• 2006-07 - this group opposed attempt by group of MPs to exclude parliament from scope of the act
• MPs argued they should be exempt on grounds they were entitled to confidentiality - in correspondence with constituents
• Bill passed in commons but failed to find a sponsor in Lords so was dropped

Question 22

What is arguably the most emotive area where rights of the individual have come into conflict with the priorities of government?

Answer 22

Counterterrorism:

9/11 terror attacks in the USA in 2001, and the 7/7 London Underground and bus bombings in 2005 - led to govt measures that limited civil liberties in the interests of protecting the wider community.

Question 23

What did terrorist attacks lead to, and what was the response?

Answer 23

Ministers argued that they entitled to detain terror suspects without trial on the grounds that a national emergency existed.

Dec 2004 - law lords ruled that indefinite detention of foreign, on suspicion of involvement in terrorism, was discriminatory.

Faced with legal challenge, govt passed new law to introduce system of control orders - enabled suspects to be closely monitored, such as through electronic tagging - requirement to report to the police and removal of mobile phones and internet access.

Control orders kept in place, despite adverse rulings by judges, until 2011 when the govt replaced them with a modified version known as Terrorism Prevention and Investigation Measures (TPIMs).

Question 24

Why would it be untrue to say that there has been an unremitting erosion of human rights in response to fears of terrorism?

Answer 24

Some restrictive measures have been abandoned in face of parliamentary and public opposition.

E.g. - Nov 2005 - government’s proposal to extend period that suspect could be held before charged, from 14 to 90 days - defeated in Commons

Govt compromised - 28 days and abandoned a subsequent attempt to increase it to 42 days, following a defeat in the Lords in 2008.

Under coalition the 28-day period halved, and Labour government’s plan for compulsory identify cards was scrapped.

Question 25

Why have pro-human rights pressure groups such as Liberty failed to stop the introduction of some measures that sacrificed some liberties?

Answer 25

The public has been remarkably willing to sacrifice some liberties at a time of heightening concern over security.

Governments have tended to place the safety of society above the protection of individual rights.

So govt introduced so-called ‘secret courts’ - permit terrorist suspects and major criminals to be tried without the evidence against them being disclosed in full.

Also existing was the passage of the Investigatory Powers Bill - so-called ‘Snoopers’ Charter’ - increases power of intelligence agencies by obliging internet companies to store information about customers’ browsing history

Question 26

What is the Howard League for Penal Reform?

Answer 26

Campaigns for rights of prisoners - struggled to persuade govt to implement its agenda

Rights of convicted criminals don’t constitute a popular cause

But they tend to win victories on relatively minor issues, such as securing a 2014 High Court ruling that obliged govt to drop ban on prisoners’ families sending books to them.

On wider issue of securing a reduction in size of the prison population the League has been less successful - noting in a review in May 2016 that ‘there is no public service in such disarray as the prisons’