Human Rights and Civil Liberties, the liberty and justice that a citizen or person expects, or is entitled to expect, in the content and operation of the law. The terms are not defined in law: they overlap and are often used to mean the same thing. Rights may be regarded as positive, as they confer the freedom to do something, whereas liberties are negative in that they place limits on the state’s power to control the individual. Examples of civil liberties include the prohibition of torture, while perhaps the most basic of commonly recognized rights is the right to life.
Who possesses rights and liberties are controversial and is as much a philosophical question as a legal one. However, it is generally accepted that the state is obliged to protect and observe the basic rights and liberties of all persons, whether they are citizens of that nation or foreign nationals. Nations are constantly seeking a balance between the freedoms of the individual, and the interests of those adversely affected by the exercise of that freedom, whether the state, individuals, or animals.
The concept of inalienable rights and liberties was first articulated by the ancient Greek philosophers. Socrates was found guilty of corrupting the youth of Athens through speaking his mind. He refused to renounce this exercise of freedom of speech and was condemned to death. Aristotle, in his Nicomachean Ethics, presupposed elements of what are now basic rights. This was also the case in parts of the Bible, as well as in the philosophical writings of the Roman lawyer and statesman Cicero and the Greek biographer Plutarch. The Stoic philosophers later formulated an explicit doctrine of the rights of the individual. Conversely, the autocratic and at times brutal nature of the Roman Empire did not provide a fertile ground for these concepts. Similarly, during the medieval period, the hierarchical feudal societies did not entertain such concepts. However, the theories of St Thomas Aquinas, in his attempt to reconcile Christian doctrine with the pre-Christian learning, demand the acknowledgement of some basic rights, and he formulated what was perhaps the first justification for civil disobedience, that is, breaking the law to highlight its injustice.
III EARLY DEVELOPMENT
The feudal system’s refusal to acknowledge a source of authority beyond the commands of superiors meant that civil rights had no meaning; individual freedom can only survive if appeal can be made to a legal system that binds both the ruler and the ruled. This limitation on government received its first operative expression in Magna Carta of 1215 (see below), which set limits on the power of King John. Magna Carta was not born of democratic or egalitarian beliefs, or from any abstract concept of human rights; it was a treaty, almost a contract, between the king and the most powerful nobles. It defined the relationship between them and established a legal order to which the king was subject. In its terms it would appear to be universal, but it is doubtful whether it was of much benefit to the ordinary people, who were often subject to the arbitrary command of the very nobles who had forced the charter on the king. Even in the more exalted levels of society, the idea of rule by a king’s divine right, above human law, persisted, and led to fierce struggles between Crown and Parliament during the Tudor and Stuart dynasties.
On the European continent, the struggle between authoritarianism and liberty developed more around religious issues. During the Reformation, freedom of religious belief and practice was a primary concern. Tolerance was rare: as late as 1612 members of the Unitarian sect were burned in England for their heresy. The Inquisition in Spain has become a byword for savage intolerance. Only by the end of the 18th century was the ideal of religious toleration firmly established in Western civilization.
As a result of the English, American, and French revolutions, libertarian ideals were embodied to a greater or lesser extent in the structure of government. In England the struggle between Parliament (not a democratic institution in the modern sense) and the Stuart monarchy saw an inconclusive deposition and restoration of the monarchy, and finally the successful Glorious Revolution of 1688 (so called because it was carried out without bloodshed in England). The last Stuart king, James II, was expelled, having tried to resurrect the monarch’s absolute power in his religious dissent from the national Church. He was replaced by William and Mary, who assented to the Bill of Rights of the same year. This guaranteed constitutional government and led, eventually, to the present-day doctrine of the absolute supremacy of Parliament (although this has recently been under pressure from developments in the legislative powers of the European Union), as the monarch’s powers were gradually limited by statute and custom. The system of constitutional monarchy was articulated by the contemporary English philosopher John Locke, and his writings profoundly influenced the leaders of the American colonies and other libertarians over the following century.
The 17th and 18th centuries also witnessed the growth of freedom of the individual in England. In the common law courts, in particular, judges became more concerned for the rights of those accused of a crime, and procedural fairness became a priority in criminal and civil law.
IV THE SPREAD OF CIVIL LIBERTIES
British colonists took the concepts of limited government and individual freedom to the New World: the first colonists were refugees from religious persecution. The early laws of the first states reflected interest in the reform of criminal procedure developing in England. The American and subsequently the French revolutions both inspired and were inspired by writings that laid the foundations of modern ideas of civil liberties. Notable authors of the time were the French philosophers Voltaire and Jean-Jacques Rousseau, the British reformer John Wilkes and philosopher Jeremy Bentham, the Anglo-American writer Thomas Paine, and the American statesman Thomas Jefferson. The Declaration of the Rights of Man and of the Citizen in France and the Bill of Rights in the United States Constitution formally set out libertarian principles that are central to modern democracy.
Although civil liberties are now considered an integral part of democratic government, it would be a mistake to see this period as a democratic one in a modern sense. These principles were developed when political power in England was in the hands of an aristocratic upper class and of a mercantile class almost as small. Many of the American founding fathers did not favour democracy in the modern sense. Conversely, democracy as a means of determining the composition of government has historically been no guarantee of civil liberties: enforcement of the law may be arbitrary or despotic, and minorities may have no effective safeguards against tyranny.
V HUMAN RIGHTS IN THE UNITED KINGDOM
Basic human rights and civil liberties in the United Kingdom are guaranteed by the Human Rights Act 1998. The United Kingdom does not have a written constitution enshrining the rights of citizens, as in the United States, and this Act is as close as the United Kingdom gets to a comprehensive statement of rights and freedoms. The Act became law on October 2, 2000. It makes the basic rights of the individual contained in the European Convention on Human Rights part of UK law. Under the Act public bodies, such as government departments, the National Health Service, and local councils, must act in accordance with human rights. Judges must also give effect to human rights in the way they decide cases.
Many journalists and commentators forecast a flood of litigation as a result of the Act, but this did not prove to be the case. In reality, the Act did not make any major changes to the way cases are decided. Judges had considered human rights in making their decisions even before the Act came into force, and continue to do so now.
Before the Human Rights Act came into existence, human rights in the United Kingdom were mostly protected by the courts. Historically speaking the rights and liberties of the British citizen were protected by Magna Carta, whose most famous clause guarantees a fair system of justice, or due process; and the Bill of Rights, which established the supremacy of Parliament, and in a modern democracy guarantees, for example, that nobody shall be taxed without representation. Comparing those old documents with the new Act, it can be seen that whereas Magna Carta sought to guarantee a fair system of justice, Article 6 of the European Convention (which is now part of UK law under the Act) guarantees the right to a fair trial. While many journalists, and some politicians, characterize human rights as a modern concept, its origins are ancient and reflected in Magna Carta and the Bill of Rights—it is just the term “human rights” that is modern, and even that term has been common parlance since shortly after World War II.
In deciding whether an individuals’ rights have been violated, judges must balance that individual’s rights and interests against the needs and interest of society at large and any individuals or groups who have an interest in the case. The key question is whether the limits that have been placed on an individual’s freedom to act are proportionate to the reason for those limitations.
As an example of the balancing of individual rights against competing interests, the judicial committee of the House of Lords was recently asked to consider the lawfulness of the indefinite detention without trial of foreign nationals believed to have terrorist connections. The UK government argued that the interests of national security and the human rights of British citizens would be threatened if the suspects were released. The detainees argued that they were entitled to a trial in accordance with Article 6 of the European Convention. The House of Lords found in favour of the detainees, concluding that while detention without trial could be lawful in exceptional cases, the interests of national security and the British people were not sufficiently threatened by these detainees to justify the government’s actions.
The case could be looked at in this way: the interests of the individual and society were put on the scales; in view of the serious interference with human rights involved in the case, the government was required to show very strong justification for its actions; the judges concluded that the government was unable to show sufficiently strong justification, and the detainees, therefore, won the case.
Even before the Human Rights Act judges created laws to protect the citizen from the unreasonable or unfair exercise of power by government and state, and these laws continue to exist today. Decisions made unreasonably by government bodies could be quashed, and the government could be required to take the decision again or pay compensation for the impact of the unfair decision on the individual. The creation of a criminal law system that strives for procedural fairness is mostly the work of judges. Within that field other human rights are considered: judges should always aim to interpret a statute creating criminal offences in favour of the accused, and to ensure laws are not creating retrospective legislation, that is, making an act punishable now that was not punishable when it was performed. The degree of protection that judges afford the citizen waxes and wanes, however, with judicial fashion and the political climate.
Judges in the United Kingdom do not, however, have the power to overrule Parliament. If an Act of Parliament clearly permits the violation of human rights or civil liberties, judges are technically powerless to stop it. However, some judges are always willing to interpret the words of Parliament in a way that protects the individual, even if this means applying an illogical or wholly unsupportable interpretation. Some would say that in doing that judges are acting beyond their powers—others would say that this is a necessary last defence against the oppression of the individual by the state. Where judges feel that it is not possible to interpret the words of Parliament in accordance with human rights their only power is to make a “declaration of incompatibility” under the Human Rights Act. This effectively requires Parliament to look at the matter again but does not change the law, nor does it oblige Parliament to change the law.
Convention in the governance of the country and the application of the laws continues to provide a wide-ranging source of rights, even after the coming into force of the Act. As an example of a convention that is observed by judges, it is the guiding principle of the unwritten British constitution that everybody is free to do what he or she likes, so long as it has not been prohibited. Whether this is in fact true is a controversial question. Other more specific conventions protect such rights as the right not to have property confiscated without compensation; or the right to equal treatment, by making everybody subject to the law of the land. The content of these conventions is difficult to describe, since they are informal. For this reason they provide uncertain protection, but their content is reflected in the rights protected by the European convention and the Human Rights Act.
VI HUMAN RIGHTS UNDER THE EUROPEAN CONVENTION
As we have already seen, the European Convention on Human Rights is now a part of UK law. The convention was inspired by all European nations’ abhorrence of the Holocaust. Following World War II there was pan-European determination to make a statement of the basic rights of every individual in an effort to prevent a repeat of the Holocaust. The Convention, signed in 1950 by most European nations including the United Kingdom, established a court and a commission, to investigate complaints of human rights violations. Individuals from the states who have signed the Convention have the right to bring a case before the court, although they must first take their case through the courts in their home country.
The Convention contains a number of articles, each of which guarantees a certain right or freedom. The Convention operates on the basis that while each right cannot be violated by the nations who signed the Convention, those states have a “margin of appreciation” in determining the content and extent of each right. It is this concept of a margin of appreciation that underlies the balancing act set out above, and seen in the recent House of Lords case. The Convention’s standard formulation of the state’s margin of appreciation is that the right or freedom “…shall be subject only to such limitations as are prescribed by law and are necessary for a democratic society…”.
By and large the rights contained in the European Convention are recognized around the world, although that is not to say that those rights are always observed—consider the ethnic cleansing that occurred during the Yugoslav conflict of the 1990s. It remains to be seen whether what are termed “second generation” rights, such as the right to health care or to a decent standard of living, will become recognized throughout the world. Given the difficulties in ensuring the protection of the established basic rights, it may be some time before international institutions and national government are able to address the next generation of rights and liberties.
The Convention guarantees the following basic rights:
The Right to Life—this is commonly regarded as the most basic of all human rights. Article 2 of the convention, which guarantees this right, does not, however, prevent execution as a sentence following conviction before a court of law. Death sentences are no longer common across Europe, but they were not uncommon in 1950 when the convention was drawn up.
The Prohibition of Torture—this is one of an absolute rights in the convention. The entire text of Article 3 is “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” There is no margin of appreciation in respect of this right.
The Prohibition of Slavery and Forced Labour—this prohibition is contained in Article 4. There is no margin of appreciation here either, although the convention makes it clear that compulsory national military service and work required to be done in the course of detention imposed as a sentence by a court of law does not fall within the definition of forced labour.
The Right to Liberty and Security—under Article 5 every person is entitled to liberty other than where they are arrested or sentenced to imprisonment in accordance with the law. Any person who has been arrested or detained other than in accordance with applicable laws must have a right to compensation.
The Right to a Fair Trial—this right, contained in Article 6, is the most important human right in the criminal process. Whether the case is civil or criminal, it requires impartiality in the court trying any case, that cases are conducted in public other than in exceptional cases, and that trials are conducted within a reasonable time. In criminal matters, the presumption of innocence and the right to challenge the prosecution case are all protected.
The following rights are also protected under the convention and are expressly subject to the “margin of appreciation”: the right to respect for private and family life (Article 8); the right to freedom of thought, conscience, and religion (Article 9); the right to freedom of expression (Article 10); the right to freedom of assembly and association, including the right to create or join trade unions (Article 11).
This list is not exhaustive. It is intended to give a flavour of the kind of right protected under the convention and now recognized in UK law under the Human Rights Act. In the following sections the role of human rights and civil liberties in a number of different areas is considered.
VII FREEDOM OF SPEECH
The freedom to speak one’s mind, as a citizen, is limited in a number of ways in English law. There have been no substantial changes in the law on freedom of speech following the Human Rights Act—in simple terms a person’s freedom to speak or publicize their views is to be balanced against the interests of those affected. The laws of libel and slander are the most important restrictions. Other restrictions operate in particular areas: for example, public order, national security and official secrets, contempt of court, and blasphemy.
A particular restriction on freedom of speech is the offence of inciting racial hatred, which is widely accepted, and recently became part of UK law. Such an offence depends on an intent to stir up hatred, and is used only for blatant cases of racist demagoguery: it does not make the uttering of racist remarks alone criminal.
In times of war, the balance is drawn more strictly against the exercise of freedom of speech by means of special regulations granting powers to government officials, most notably the power to detain people without trial. While criticism of the conduct of a war has generally not been prevented, the publication or statement of words likely to cause disaffection has been.
The media’s most common concern, in relation to the freedom of speech, is the law on libel. The protection of the press from libel action is granted solely in the reporting of court cases and Parliamentary business. These are very limited exceptions, and the huge costs of libel actions are a constant brake on freedom of speech and the freedom to report. The press was unable to print what it suspected of the late Robert Maxwell, a massive fraudster, until after his death in 1991 because of his constant threats of libel action.
Complaints of irresponsible behaviour by the press have led to threats of further laws of restraint, particularly in its treatment of celebrities. The press industry has responded to this in a form of self-censorship, creating the Press Complaints Commission to deal with allegations of unacceptable conduct. This body is capable of ordering that newspapers print apologies. It aims to draw a line between responsible investigative journalism and abuse. Several similar bodies exist for the broadcast media, which are obliged by law (unlike the press) to be impartial in their coverage of all controversial issues.
There is no right in British law to privacy as such, although the right to respect for private and family life (Article 8 of the European convention) provides a similar right.
The home is protected from invasion by the requirement on the police to obtain a search warrant, but there are exceptions to the requirement, and, perhaps surprisingly, tax investigators have considerably wider powers than police officers. The practice of intercepting telephone conversations may only be carried out by police and security services on a warrant from the home secretary: in 1985 all jurisdiction over this was taken away from the courts and placed with tribunals, which sit in private. There is no comprehensive protection of the home such as exists in the United States, where the courts were able to interpret the Constitution as providing a right to privacy.
The activities of newspapers in investigating and photographing well-known people have caused much concern, especially when they involve such instruments as telescopic camera lenses. Libel, however, rarely provides a protection against the printing of a photograph. The most extreme examples of invasion of privacy have met a legal response, even if its convoluted form indicates the alien nature of a right of privacy to English law. In one case, a newspaper printed a photograph of a well-known actor in a coma. The actor subsequently recovered damages for malicious falsehood, since the way the picture was printed, with an accompanying article, suggested he had cooperated with the newspaper when he had not, and this misrepresented his professional activities. While the court did not recognize a right to privacy, Michael Douglas and Catherine Zeta-Jones famously won their case against Hello! magazine when Hello! took photographs of their wedding without the couple’s permission.
VIII ETHNIC MINORITIES
Black people are more likely to be convicted of a criminal offence than white people: the comparative poverty of the black community (poverty is often an indicator of crime) does not explain this statistically. If convicted, a black person is considerably more likely to be imprisoned than a white person. The only remedies proposed have been rejected as worse than the problem: the suggestion, for example, of choosing juries in some way representative of the defendant’s community seems to threaten the whole concept of trial by jury.
In addition, the number of black males detained with symptoms of schizophrenia appears to be hugely disproportionate: one explanation, possible racism on the part of doctors, seems inadequate, and it has been argued that the stress of being black in the United Kingdom may be a factor. Many allegations of racism are made against the police, and tension between the police and black communities led to riots in the 1980s. The drive to recruit ethnic minorities to the police force has not completely removed mutual suspicion. All these factors suggest that many civil rights may not, in effect, be available to ethnic minorities.
Attempts have been made to secure civil liberties for ethnic minorities by laws against racial discrimination. These have so far been limited in effect because of distaste on the part of lawmakers for positive discrimination, which, while working in favour of those who presently lose out, would also work against others. There is a widespread feeling that such discrimination will only be truly resolved by a process of education of those with racist tendencies; a more general awareness of racism; and an increase in the representation of ethnic minorities in positions of power.
IX OTHERS WHO SUFFER DISCRIMINATION
Although the British system does not overtly discriminate against any group, there are others whose vulnerable position in society it fails to ameliorate. There is no legal protection against discrimination on the grounds of age as such: the only effective action has been successful on the basis that age discrimination was indirect sex discrimination. Elderly people are becoming increasingly vocal on this issue (see Ageism).
There have been attempts to deal with discrimination against disabled people, but perhaps the only effective existing action is that which requires the planning of buildings to take their needs into account, and the recently enacted requirement that premises providing services to the public provide reasonable access for the disabled.
Homosexuals also experience discrimination in some areas in the United Kingdom. While homosexual activity was legalized in 1967 between two consenting adults in private, the law still makes criminal many activities that are not illegal for heterosexuals. However, in 2000 the age of consent for homosexuals was lowered to 16, to bring it in line with that for heterosexuals.
People with criminal convictions are often discriminated against. The law on rehabilitation of offenders has gone some way to remedying this, allowing ex-convicts to ignore their record in, for example, applying for certain jobs, after a time period that varies according to the sentence received. People who have served long prison sentences do not fall within the rules, and there are several exceptions where it is considered necessary for the employer—often the government—to know of any criminal history.
X HUMAN RIGHTS IN THE CRIMINAL PROCESS
The criminal law system has developed a system of rights known as due process in an attempt to ensure a fair hearing for those accused of crimes. The modern system dates in effect from 1898 in England, when defendants were first allowed to give sworn evidence in their own defence; before that, an ancient rule held that they were incompetent to testify because their own interest in the case made them unreliable witnesses.
The most important procedural safeguards come from the presumption of innocence, which requires that the prosecution prove the case against the defendant “beyond reasonable doubt”, and has its paramount expression in the right of silence. The defendant must have the whole case against him or her revealed, and the opportunity to challenge witnesses. A number of miscarriages of justice in England in recent years has led to strict guidelines, which require the prosecution to disclose all the relevant material it has to the defence; convictions obtained where this has not been done are likely to be overturned.
The defendant is also protected during police questioning. Legal advice is now seen as being almost as important as procedural fairness. A scheme is in operation to attempt to obtain a solicitor for all people questioned about a crime, and legal aid is granted in some cases.
Traditional human rights have been eroded in the creation of criminal offences of strict liability: that is, the prosecution needs only prove that the acts complained of were carried out (for example, many driving offences) and any defence then has to be proved by the defendant. This has been justified either because it is the only way of dealing with a serious social problem (such as drunken driving); or because other charges, such as allowing pollution of a river (usually aimed at companies rather than people), are usually only prosecuted when the prosecuting authority thinks the behaviour is culpable. This leaves the defendant’s rights at the discretion of the prosecutor, but this is only an acute problem in the very rare cases when the defendant is a private individual, and the offence carries a serious stigma.
Recent reforms under the Criminal Justice Act 2003 effect major changes in the admissibility of previous convictions as evidence at trial. Previous convictions were generally inadmissible in the past, but under the new law they will be admissible as evidence of guilt. This controversial issue reflects a modern tension in criminal law; on the one hand it is argued that a long list of previous convictions is evidence of a criminal disposition, and relevant to the question of whether an offence has been committed. On the other hand, it is argued that if a jury knows of the defendant’s previous crimes it will be unfairly biased against him or her and that a criminal past does not prove the commission of the offence in question. Recent reforms in criminal justice have tended to place procedural convenience over concerns as to defendants’ rights—rightly or wrongly the UK government is principally concerned with victims’ rights in the criminal process.
The right to jury trial—considered sacrosanct by many—is also reformed under the new Criminal Justice Act. The circumstances in which a defendant will be able to choose trial by jury will be greatly reduced. While these reforms promote procedural efficiency and may well speed up the court process, many doubt whether they promote substantive justice.
In the context of the Human Rights Act, it is well established that the admissibility of previous convictions does not violate the Article 6 right to a fair trial. The admission of previous convictions is common on the continent of Europe and has been for some time. The limitation on jury trial could easily be justified under the margin of appreciation as necessary in the prevention and reduction of crime. Generally speaking, a violation of Article 6 would involve a very serious procedural defect, such as bias on the part of the judge or a jury that was not free to reach its own verdict.
XI INTERNATIONAL CONCERNS
The United Nations has consistently sought to protect basic human rights through the resolutions of the General Assembly and the Security Council. The most far-reaching of these declarations is the United Nations’ Universal Declaration of Human Rights. These declarations are not, however, binding on governments and there are no means of enforcing them.
Efforts to enforce collective agreements between nation states conflict with the right of every state to conduct itself how it sees fit. This tension is unlikely to ever be resolved—the protection of human rights on the international stage has been, and will continue to be, uncertain. The fact that an international agreement asserts a right does not mean that right is in fact guaranteed. All too often when violence erupts in a country, the question of whether widespread human rights abuses can be halted depends on the willingness of other countries to send in troops. Whether it is right to intervene in this way is open to debate. Intervention of this kind has only happened once—in Kosovo, where the United Kingdom and United States sent in troops to halt widespread ethnic cleansing.