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Civil liberties in the United Kingdom

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Civil liberties in the United Kingdom are part of UK constitutional law and have a long and formative history. This is usually considered to have begun with Magna Carta of 1215, a landmark document in British constitutional history.[1] Development of civil liberties advanced in common law and statute law in the 17th and 18th centuries, notably with the Bill of Rights 1689.[2] During the 19th century, working-class people struggled to win the right to vote and join trade unions. Parliament responded with new legislation beginning with the Reform Act 1832. Attitudes towards suffrage and liberties progressed further in the aftermath of the first and second world wars. Since then, the United Kingdom's relationship to civil liberties has been mediated through its membership of the European Convention on Human Rights. The United Kingdom, through Sir David Maxwell-Fyfe, led the drafting of the Convention, which expresses a traditional civil libertarian theory.[3] It became directly applicable in UK law with the enactment of the Human Rights Act 1998.

Civil liberties have been gradually declining in the United Kingdom since the late 20th century. Their removal has been generally justified by appeals to public safety and National Security and hastened on by crises such as the September 11 attacks, the 7/7 bombings and the 2020 COVID-19 pandemic.[4][5][6] The pandemic oversaw the introduction of the Coronavirus Act 2020, which was described by former Justice of the Supreme Court Lord Sumption as "the greatest invasion of personal liberty in [the UK's] history."[7]

The relationship between human rights and civil liberties is often seen as two sides of the same coin. A right is something you may demand of someone, while a liberty is freedom from interference by another in your presumed rights. However, human rights are broader. In the numerous documents around the world, they involve more substantive moral assertions on what is necessary, for instance, for "life, liberty and the pursuit of happiness", "to develop one's personality to the fullest potential" or "protect inviolable dignity". "Civil liberties" are certainly that, but they are distinctly civil, and relate to participation in public life. As Professor Conor Gearty writes,

Civil liberties is another name for the political freedoms that we must have available to us all if it to be true to say of us that we live in a society that adheres to the principle of representative, or democratic, government.[8]

In other words, civil liberties are the "rights" or "freedoms" which underpin democracy. This usually means the right to vote, the right to life, the prohibition on torture, security of the person, the right to personal liberty and due process of law, freedom of expression and freedom of association.[9]

Background

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The Bill of Rights 1689 secured the supremacy of Parliament over the King, laying the foundations of representative democracy.

Enlightenment

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Sir William Blackstone was the archetypal figure of the British Enlightenment, a legal scholar who in his Commentaries professed the liberty of citizens deriving from the Magna Carta and the common law.
  • Ashby v White (1703) 1 Sm LC (13th Edn) 253, right to vote cannot be interfered with by a public official.
  • Armory v Delamirie (1722) K.B., 1 Strange 505, 93 ER 664, right to property that you find.
  • Entick v Carrington (1765), right against arbitrary search and seizure; Lord Camden, quoting almost verbatim from John Locke, held that man entered society to secure his "property" (lives, liberties and estates). His principle was that the individual could do anything not prohibited by law, and the state could do nothing but that which was authorised by law.
  • R v Knowles, ex parte Somersett (1772) 20 State Tr 1; (1772) Lofft 1, abolition of slavery, for "the air of England has long been too pure for a slave, and every man is free who breathes it." However, this did nothing for the colonies.
  • Trials of John Wilkes.

Democracy

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After selling her home, English activist Emmeline Pankhurst travelled constantly, giving speeches throughout Britain and the United States. One of her most famous speeches, Freedom or death, was delivered in Connecticut in 1913.

Post-World War II

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As well as being instrumental in drafting it, the United Kingdom signed up to the European Convention on Human Rights under Clement Attlee and Ernest Bevin in 1950.

"We will do our best to see that our decisions are in conformity with it. But it is drawn in such vague terms that it can be used for all sorts of unreasonable claims and provoke all sorts of litigation. As so often happens with high-sounding principles, they have to be brought down to earth. They have to be applied in a work-a-day world."

  • The Sunday Times v United Kingdom (1979–80) 2 EHRR 245. The Attorney-General had obtained an injunction preventing The Sunday Times newspaper from publishing an article describing the history of the testing, manufacture and marketing of the drug thalidomide by The Distillers Company, on the grounds that it would prejudice ongoing litigation between Distillers and parents of children who had suffered birth-defects caused by the drug. By 11 votes to 9, the European Court of Human Rights held that the injunction violated the paper's right to freedom of expression under Art.10 ECHR.

In response to this judgment the UK parliament passed the Contempt of Court Act 1981.

1980s

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Margaret Thatcher oversaw a gradual tightening of security legislation to crack down on industrial protests and the Provisional IRA.
  • Police and Criminal Evidence Act 1984, allowed four days' detention without trial (previously it was 24 hours).
  • CCSU v Minister for the Civil Service [1985] AC 374, where GCHQ members were banned by Margaret Thatcher (also the Minister for the Civil Service) from belonging to unions. The House of Lords held that the Royal prerogative was subject to judicial review. Banning unions was within the discretion of the Minister.
  • Malone v Metropolitan Police Commissioner [1979] Ch 344, Megarry VC said that the executive could do anything that was not prohibited by law (purporting to reverse Entick v Carrington). This meant that a dodgy antique dealer could not be prosecuted for handling stolen goods based on evidence from a wire tap that the police had no authority under any statute to do.
  • Malone v United Kingdom (1984) 7 EHRR 14, said that UK allowing the phone tapping is in breach of its obligations under the ECHR, because there was no law that did 'indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities."[14]
  • Public Health (Control of Disease) Act 1984 permits the government to impose restrictions or requirements on individuals in the event of a public health emergency. This legislation was used to justify the government's response to the 2020 COVID-19 pandemic.[15][16]
  • Interception of Communications Act 1985, the government's response to the ruling, allowing any phone tapping.
  • Public Order Act 1986, passed in the context of widespread industrial disputes, particularly the miners' strike, Part II limited public processions and demonstrations by requiring 6 days advance notice to be given to the police.
The Brighton Hotel Bombing by the Provisional Irish Republican Army to coincide with the Conservative Party conference preceded a sterner approach to security legislation.

1990s

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Tony Blair and then-U.S. President George W. Bush both introduced rafts of new security legislation as a reaction to terrorism after the September 11, 2001 attacks and the Iraq War.
  • Human Rights Act 1998, for the first time this allowed direct appeal in British courts to be made on the basis of the European Convention on Human Rights. It preserves Parliamentary sovereignty, because courts may not strike down democratically decided laws, they can only issue a "declaration of incompatibility" (s.4). Judges, when interpreting legislation, may also presume that Parliament intended not to derogate from Convention rights (s.3). It is a precondition of a claim to the Strasbourg court that a claimant has exhausted the domestic legal system's avenues for appeal. The main reason for incorporation, and justification from advocates and the Government was to save time and cost. Other countries, such as Germany and France have their own standards, but all follow and stay conformity with the ECHR. Similarly, the ECHR is drawn from the traditions of every member state, and acts as a method for maintaining minimum standards on which there is general consensus. Despite its controversy, this may be viewed as a uniquely British measure, especially given the fact that the Convention was drafted under the direction of the British government.

21st century

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  • Terrorism Act 2000, extended the limit to 7 days' detention without charge for terrorist suspects. It also allows terrorist organisations to be banned. Sixty groups have to date been outlawed. The Act also introduced a broad definition of "terrorism" under s.1. The stop and search powers in the Act were used to search protesters at an arms trade fair in Canary Wharf, including a Ph.D. student and a journalist who took legal action as a result. The police action was held to be lawful in R (Gillan) v Commissioner for the Metropolitan Police [2006] UKHL 12.
  • Regulation of Investigatory Powers Act 2000, allows the government full surveillance powers of all kinds of communication. The current rate is 30 warrants being issued a week. In the 15 months from July 2005 to October 2006, 2,407 warrants were issued.
  • Anti-Terrorism Crime and Security Act 2001, in response to the destruction of the NYC World Trade Center on 9/11, the government passed legislation allowing indefinite detention without trial for non-British nationals suspected of committing terrorist offences, but without enough evidence for an actual trial (cf. Magna Carta, Habeas Corpus Act 1679). When passing Acts of Parliament, under the HRA 1998 the Minister has to make a "statement of compatibility" with the Convention. What they did was to send notice of derogation from the right to a fair trial, Art.6 ECHR. Art.15 ECHR is the derogation provision, which says "In time of war or other public emergency threatening the life of the nation" a member can derogate "to the extent strictly required by the exigencies of the situation". The minister then declared when passing the 2001 Act that it was (with the derogation sent) compatible with the HRA 1998.
  • Criminal Justice Act 2003, abrogated double jeopardy in cases with "new and compelling evidence".
  • A and Others v Secretary of State for the Home Department [2004] UKHL 17, the majority of the House of Lords decided that the detention without trial under the ATCSA 2001 was discriminatory to non-British nationals, and therefore incompatible under Art.14 ECHR. A declaration of incompatibility was issued under s.4 HRA 1998. Lord Hoffmann was the only dissenting judge to hold that the whole detention without trial idea was incompatible with the right to a trial under Art.6, and that the derogation was unacceptable, because there was no "threat to the life of the nation". He argued strongly that it would be wrong to suggest, with the majority's view that discrimination was the problem, that the government should be allowed to lock up all Britons alike.
  • Civil Contingencies Act 2004, allows the government, for an "emergency", to deploy armed forces anywhere in the country during peacetime (cf. Bill of Rights 1689). It also allows property to be sequestrated, for an "emergency" with or without compensation anywhere (cf. Prot. 1, Art.1 ECHR).
  • Felony disenfranchisement in the United Kingdom was the topic of ECHR cases and political debate between 2005 and 2012.
  • Serious Organised Crime and Police Act 2005, created an offence of inciting religious hatred and requires advanced notification for protests up to 1 kilometre from Parliament. cf Blum v Director for Public Prosecutions.
  • Prevention of Terrorism Act 2005, the government in response to A's case passed this allows the Home Secretary to impose control orders on any British citizen. Anybody suspected of terrorist related activities by the Home Secretary, but without any kind of trial, can be electronically tagged, monitored, be restricted from making phone calls, using the internet, be banned from certain kinds of work, can be restricted from going certain places, have one's passport revoked and be under a duty to report to the police. The control order system was held disproportionate in Secretary of State for the Home Department v JJ [2007] UKHL 45. The system was declared incompatible, because there was no derogation. However Lord Brown stated that if a suspect was left with eight hours' liberty a day, then it would have been acceptable.
  • Terrorism Act 2006, following the bombings in London on the 7 July, this legislation allows for people suspected of terrorist offences to be detained without charge for up to 28 days. The Criminal Justice Act 2003 had extended the time to 14 days. The government had initially proposed a limit of 90 days, saying this was on the recommendation of the police, and citing support from opinion polls. Opposition among MPs saw the first defeat for the Blair government; the Conservative amendment of 28 days' detention without charge being accepted. The act also created a new offence of "glorifying terrorism".
  • Austin v Metropolitan Police Commissioner [2007] EWCA Civ 989, Court of Appeal rejects a charge of false imprisonment and an Art.5 ECHR claim for police holding May Day protestors in Oxford Circus in 2001.
  • Counter-Terrorism Bill 2008 sought to extend the number of days' detention without charge to 42 days and to allow the Home Secretary to require an inquest to be established without a jury in secret if they deems it to be in the public interest, the interest of an overseas treaty partner or in the interest of national security. David Davis MP, a Conservative politician and Shadow Home Secretary at the time, resigned his parliamentary seat in June 2008 in protest over the proposed extension to detention with charge. His resignation forced a by-election, which he contested and won on a civil liberties platform. Neither Labour nor the Liberal Democrats stood a candidate. The bill also removed the prohibition on post-charge questioning, gave the police greater powers of property confiscation and gave the police powers to prevented photography in public places.
  • The Police Reform and Social Responsibility Act 2011 repealed the Serious Organised Crime and Police Act 2005 prohibitions on protest on parliament square, however, added new restrictions, such as operating amplified noise equipment, erecting tents or using sleeping equipment.
  • R v AB and CD (2014) was the first British trial to be held entirely in secret[19] although some of the restrictions were loosened somewhat by the court of appeal after a legal challenge by The Guardian.[20]
  • The Investigatory Powers Act 2016 expanded electronic surveillance powers of the British intelligence agencies. It permitted bulk collection of communications data and interception of communication data. It requires CSPs (communication service providers) to retain British internet users' internet connection records for one year, which certain government officials have access to without a warrant. CSPs are neither allowed to refuse assistance to police nor are they allowed to disclose a data request. The act also permits police to carry out targeted equipment interference.
  • In 2018, the musician Rhys Herbert (stage name 'Digga D') was given a Criminal Behaviour Order and fitted with a GPS tracker on his leg. He is required to give 24 hours notice to the London metropolitan police before uploading any media and is forbidden from inciting violence, mentioning certain areas of London or making references to certain real-life incidents or people in his music.[21]
  • The Health Protection (Coronavirus) Regulations 2020 (England only) gave the police powers to force individuals to isolate if they were suspected of having COVID-19.
  • The Coronavirus Act 2020 gives the government powers to suspend or limit public gatherings and detain individuals suspected of having COVID-19.

See also

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Notes

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  1. ^ Brysk, edited by Alison; Shafir, Gershon (2007). National Insecurity and Human Rights: Democracies Debate Counterterrorism. University of California Press. p. 76. ISBN 9780520098602. {{cite book}}: |first1= has generic name (help)
  2. ^ "Britain's unwritten constitution". British Library. Archived from the original on 8 December 2015. Retrieved 27 November 2015. The key landmark is the Bill of Rights (1689), which established the supremacy of Parliament over the Crown.... The Bill of Rights (1689) then settled the primacy of Parliament over the monarch's prerogatives, providing for the regular meeting of Parliament, free elections to the Commons, free speech in parliamentary debates, and some basic human rights, most famously freedom from 'cruel or unusual punishment'.
  3. ^ see e.g. the Praemble to the Convention, which states the Convention is there to secure "effective political democracy".
  4. ^ "Terrorism Act 2006". Retrieved 2020-02-07.
  5. ^ "Civil Contingencies Act 2004". Retrieved 2020-02-07.
  6. ^ Nia, Gissou (April 2020). "Like after 9/11, governments could use coronavirus to permanently roll back our civil liberties". Independent. Retrieved 2020-02-07.
  7. ^ Pearson, Allison; Halligan, Liam (10 September 2020). "Planet Normal: Use of fear has brought about 'the greatest invasion of personal liberty in our history' –Lord Sumption". Telegraph Media Group Limited.
  8. ^ Conor Gearty, Civil Liberties (2007) Clarendon Law Series, Oxford University Press, p.1
  9. ^ Care should be taken with such definitions. Much more "underpins" democracy than civil and political rights. Capacity for public participation goes into the social and economic: see, e.g. Jeremy Waldron, 'Social Citizenship and the Defence of Welfare Provision' (1993) in Liberal Rights: Collected papers 1981-91, Cambridge University Press, Ch.12; Also, the language of rights, liberties, freedoms, etc, etc, is inherently vague and the divisions between different rights in various documents are inevitably meaningless (e.g. is the right to liberty different from a fair trial, and does it matter?), and simply express country's cultural and historical preferences. At the core all these things come down to the mediation of relations between people, whether for power or resources or between individuals or the state. See, e.g. Alan Gewirth, Human Rights: Essays on Justification and Applications (1982); he puts forth the formula that any right can be put in the form of X claiming right Y against Z
  10. ^ "Charles I and the Petition of Right". UK Parliament.
  11. ^ (1882) 9 QBD 308, 313-4; Compare now, Hammond v Director of Public Prosecutions [2004] EWHC 69 (Admin), where a homophobic preacher in Bournemouth was arrested for breach of peace after people started pushing and throwing water over him; and Redmond-Bate v Director of Public Prosecutions [1999] Crim Law Rev, where Fundamentalist Christians preaching on Cathedral steps, attracting 100 stirred up people were removed for "breach of the peace". Sedley LJ held that in contravention to Art.11 ECHR and Beatty
  12. ^ see, Taff Vale case, Quinn v Leatham and South Wales Mines; the first of these was the direct cause for the formation of the Labour Party: to lobby for its reversal.
  13. ^ Although clearly these cases are anachronistic to the highest degree and moribundly conservative, political donations by unions and business alike; see for instance the Companies Act 2006 ss.362-379.
  14. ^ (1984) 7 EHRR 14, 79
  15. ^ "Public Health (Control of Disease) Act 1984". legislation.gov.uk.
  16. ^ "COVID-19 contain framework: a guide for local decision-makers". Retrieved 2020-02-07.
  17. ^ [1990] 1 A.C. 109, at p. 283G
  18. ^ Security and Privacy, The Guardian, 19 July 2001
  19. ^ "Secret trial plan for English court". BBC News. 4 June 2014.
  20. ^ "judiciary.gov.uk" (PDF). www.judiciary.gov.uk. Retrieved 2015-04-17.
  21. ^ Patterson, Joseph 'JP' (2 December 2020). "Digga D: 'I've learnt from my mistakes'". BBC Three. Retrieved 14 January 2021.

References

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Historical
  • Helen Fenwick, Civil Rights: New Labour, Freedom and the Human Rights Act (2000) Longman
  • Keith Ewing and Conor Gearty, Freedom under Thatcher: Civil Liberties in Modern Britain (1990) Oxford University Press
  • Keith Ewing and Conor Gearty, The Struggle for Civil Liberties: Political Freedom and the Rule of Law in Britain, 1914-1945 (2000) Oxford University Press
General
  • Conor Gearty, Civil Liberties (2007) Clarendon Law Series, Oxford University Press
  • David Feldman, Civil Liberties and Human Rights in England and Wales (2002) Oxford University Press
  • A.W. Bradley and Keith Ewing, Constitutional and Administrative Law (2007) Longman
  • N Whitty, T Murphy, S Livingstone, Civil Liberties Law: The Human Rights Act Era (2001) Butterworths
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Human Rights Act 1998
European Convention on Human Rights
Other
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