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Hausarbeit (Hauptseminar), 2003
25 Seiten, Note: 62%
A. HUMAN RIGHTS IN THE U.K. - A HISTORICAL OVERVIEW
I. From Magna Carta to the Ratification of the European Convention
on Human Rights
1. Civil Liberties and the Constitution
2. The British Traditions of Civil Liberties
i) Magna Carta and the Bill of Rights
ii) Supremacy of Parliament and Human Rights
iii) Why Britain Has No Written Constitution
3. Britain’s Influence on the Development of Human Rights After the Second World War
i) Human Rights Instruments of the United Nations
ii) The European Convention on Human Rights - General Overview
iii) The United Kingdom’s Role in Securing Human Rights Exa mined
II. The Enforcement of Human Rights in the U.K. Prior to the Human Rights Act 1998
1. Statutory Interpretation by the Courts
2. Developing the Common Law
3. Judicial Review of Administrative Discretion
4. Concluding Remarks
B. INTRODUCTION TO THE HUMAN RIGHTS ACT 1998
I. The Incorporation of the European Convention on Human Rights
II. The Mechanism of the Human Rights Act 1998
C. THE IMPACT OF THE HUMAN RIGHTS ACT 1998 ON THE BRITISH LEGAL SYSTEM
I. Effects on Statutory Interpretation
II. Development of the Common Law
III. Judicial Review of Discretionary Decisions
LEGAL JOURNALS & TEXTBOOKS
Barendt, E., An Introduction to Constitutional Law (1st ed. 1998, Oxford University Press)
Beloff, M.J. & Mountfield, H., “Unconventional Behaviour? Judicial Uses of the European Convention in England and Wales”5 E.H.R.L.R. 467
Bradley, A.W. & Ewing, K.D., Constitutional and Administrative Law (13th ed. 2002, Long- man)
Coad, J., “Privacy - Article 8. Who Needs It”12(8) Ent. L.R. 226. Craig, P.P., Administrative Law (4th ed. 1999, Sweet & Maxwell)
De Smith, S. & Brazier, R., Constitutional and Administrative Law (8th ed. 1998, Penguin)
Drzemczewski, A.Z., European Human Rights Convention in Domestic Law - A Comparative Study (1st ed. 1983, Oxford University Press)
Duffy, P.J., “English Law and the European Convention on Human Rights”29 I.C.L.Q. 585
Fenwick, H., Civil Liberties and Human Rights (1st ed. 2002, Cavendish Publishing)
Grosz, S., Beatson, J. QC & Duffy, P. QC, Human Rights - The 1998 Act and the European Convention (1st ed. 2000, Sweet & Maxwell)
Klug, F & O’Brien, C., “The First Two Years of the Human Rights Act”P.L. 649. Klug, F. & Starmer, K., “Incorporation through the back door?”P.L. 223
Klug, F. & Starmer, K., “Incorporation through the “front door”: the first year of the Human Rights Act”P.L. 654
Klug, F., Starmer, K. & Weir, S., The Three Pillars of Liberty - Political Rights and Freedoms in the United Kingdom (1st ed. 1996, Routledge)
Lord Irvine of Lairg Q.C., “The Impact of the Human Rights Act. Parliament, the Courts and the Executive”P.L. 308.
Lyon, A., Constitutional History of the United Kingdom (1st ed. 2003, Cavendish Publishing).
Marshall, G. , “On Constitutional Theory” in Markesinis, B.S. (ed), The Impact of the Human Rights Bill On English Law (1st ed. 1998, Oxford University Press) 15.
Marston, G. , “The United Kingdom’s Part in the Preparation of the European Convention of Human Rights, 1950”42 I.C.L.Q. 796.
McCrudden, C. & Chambers, G., Individual Rights and the Law in Britain (1st ed. 1994, Oxford University Press).
Michalowski, S. & Woods, L., German Constitutional Law - The Protection of Civil Liberties (1st ed. 1999, Ashgate).
Singh, R., The future of human rights in the United Kingdom: Essays on Law and Practice (1st ed. 1997, Oxford).
Straw, J. MP & Boateng, P. MP, “Bringing Rights Home: Labour’s Plans to Incorporate the European Convention on Human Rights into U.K. Law”1 E.H.R.L.R. 71.
The Registrar of the European Court of Human Rights, “Information document about the His- torical Background, Organisation and Procedure of the European Court of Human Rights,” <http://www.echr.coe.int/Eng/EDocs/HistoricalBackground.htm> accessed 22.05.2003.
Thornton, P., Decade of Decline - Civil Liberties in the Thatcher Years (1st ed. 1989, National Council for Civil Liberties).
Wadham, J. & Mountfield, H., Blackstone’s Guide to the Human Rights Act 1998 (2nd ed. 2000, Blackstone Press).
Young, A.L., “Remedial and substantive horizontality: the common law and Douglas v. Hello! Ltd.”P.L. 232.
“A law fit for a prince,” The Guardian, 03 October 2002,
“Bringing Rights Home,” The Economist, 24 August 2000,
“What’s in a Nation?,” The Economist, 10 May 2001,
<http://www.economist.com/PrinterFriendly.cfm?Story_ID=616458> accessed 19.05.2003.
A.- G. v. Guardian Newspapers (No.2)1 A.C. 109.
Associated Picture Houses Ltd. v. Wednesbury Corporation1 K.B. 223. Bennet v. Guardian Newspapers, The Times Law Report, December 28, 1995. Derbyshire v. Times Newspapers1 Q.B. 770 (Court of Appeal). Derbyshire v. Times Newspapers2 W.L.R. 449 (House of Lords). Douglas v. Hello! Ltd.Q.B. 967.
Malone v. Metropolitan Police CommissionerCh. 344. Malone v. United Kingdom7 E.H.R.R. 14. R v. A3 All.E.R. 1.
R. v Chief Immigration Officer, Heathrow Airport, ex parte Bibi (Salamat)3 All.E.R. 843.
R v. Lambert3 All.E.R. 577.
R v. Ministry of Defence, ex parte Smith1 All.E.R. 267.
R v. Secretary of State for the Home Department, ex parte Brind1 A.C. 696.
R v. Secretary of State for the Home Department, ex parte Daly2 W.L.R. 1622. Rantzen v. Mirror Group NewspapersQ.B. 670.
Re S (Minors) (Care Order: Implementation of Care Plan)2 A.C. 291. Tyrer v. United Kingdom2 E.H.R.R. 1.
Whitehouse v. Lemon1 All.E.R. 898.
The most important piece of British legislation with regard to Human Rights is undoubt- edly the Human Rights Act 1998. The Act, in force since 2 October 2000, incorporated the European Convention on Human Rights1 into British law and constitutes one of the most con- troversial legislative creations enacted by the Westminster Parliament in its impressive history. Rancorous opponents have described the Act as a “plot to undermine Parliament and make Britain subservient to the European Union”, nothing more than a “complainers charter” and a “bonanza for lawyers.”2 Proponents counter and say that the 1998 Act will advance the cause of liberty and check the power of Britain’s over- mighty executive.3 Whatever the reader considers to be true, it is indisputable that the Human Rights Act 1998 is a huge constitutional innovation with a crucial impact on Britain’s legal system. Consequently, the present Lord Chancellor, Lord Irvine of Lairg, called it “a constitutional landmark” which “would be a point of reference for generations to come.”4
This essay will identify and analyse the most significant affects of Britain’s new human rights legislation. For that purpose it is first necessary to outline the historical development of human rights in the United Kingdom and to describe how these rights could have been enforced before the Human Rights Act 1998 came into force (Part A.) When considering this, attention will also be drawn to Britain’s political environment and its role in the development of interna- tional human rights instruments. Part B of this paper is then concerned with the question, of the approach taken by the British government in incorporating the ECHR, and how the concept of the Human Rights Act 1998 works in practice. The most significant impacts of the new Act will be examined in Part C.
The terms “human rights”, “civil liberties” and “fundamental rights” are used synony- mously in this paper. However, some terminological inconsistency exists in this area and there- fore it is firstly necessary to determine the scope of such rights. In general, human rights occur in two forms: social and economic rights and classical political rights.5 The former consists for example of the right of employment, health care, housing and income maintenance during peri- ods of ill health, unemployment or old age, whereas examples of the latter are the right of liberty of the person, the right to form political parties and to participate in elections or the rights to freedom of conscience, religion or expression. Although there are several international conven- tions drafted by international organisations which aim to promote social economic security6, only a few democratic states with a common law system seriously recognise such rights as fundamental rights7 and the UK is not amongst them.8 Despite the fact that social and economic security are indispensable for effective participation in society’s civil and political life, human rights lawyers have traditionally focused their scholarship on the category of the classical political rights.9 This work will follow this approach and pay attention only to human rights which have such an inherent civil and political character.
The vast majority of modern states in the world adopted written constitutions which formulate basic civil and political rights and freedoms for individuals which the state must re- spect.10 In this respect the written constitution of a state means a written document or group of documents which outline the powers of its parliament, government, courts and other important national institutions.11 This is for example the case in Germany where the constitution, the Grundgesetz, sets out such basic fundamental rights in its first 19 Articles which every individ- ual person can enforce against the state. As provided for in Article 1 (3) of the Grundgesetz, German courts are explicitly required to hold legislation and executive acts and decisions inva- lid if they infringe these rights. In Britain there exists no such document or group of documents which could be referred to as the British constitution. Thus, the United Kingdom has no consti- tution in that narrower sense.12 However, it cannot be concluded that Britain does not have a constitution at all. In fact the term constitution must be used in a broader sense, as comprising the regular system of government with its complex rules of defining the composition, functions and interrelationships of its institutions. In this broader sense, Britain does have a constitution and a body of constitutional law which is founded on a complex combination of statutes, judi- cial decisions, conventions and practices.13 The point is, that the constitution of the U.K. is merely uncodified.14
2. The British Traditions of Civil Liberties
i) Magna Carta and the Bill of Rights
Although in the United Kingdom the rights of individuals have not been set out in any code or bill of rights, this country has played a distinguished role over the centuries in devising and exporting the idea of human rights.15 As we will see in the following, various historical facts justify this point of view.
The famous Magna Carta, which was granted by King John in 1215 to the nobles of Runnymede and confirmed by later kings, is one of these innovative ideas. This unique document, which is of extraordinary significance in the constitutional history of Britain, embodied a protest against arbitrary punishment and formulated rights to a fair trail and a just legal system. In 1699 the well- known Bill of Rights set out certain rights and liberties which subjects could henceforth claim against the king. The Act included prohibitions against “excessive bail of fines” and “cruel and unusual punishment”.16
It is firstly remarkable that both ancient documents set out provisions which are com- mon to modern constitutions and human rights instruments and secondly that they have been formulated already in a modern style: as positive rights and guaranties. However, their main purpose was to share power between the monarch and the propertied classes and not to establish a comprehensive set of rights for the common people. The Magna Carta for example allowed for discriminatory treatment of Jews, and the Bill of Rights reserved special rights, for example the right to bear arms, only for Protestants.17 Although neither of these ancient Acts can be seen as a human rights document in the modern sense because of their discriminatory manners, they nev- ertheless demonstrate that the general notion of the enforcement of rights by subjects against a sovereign was indeed a fundamental one in the United Kingdom’s legal system, even if at this time, these rights were granted only to preferential classes of the society. Other key events in Britain’s constitutional history must also be mentioned in this context: the Habeas Corpus Act 1679, which provided remedies against imprisonment without trial, and the Petition of Rights 1628 which contained inter alia protests against taxation without the consent of Parliament. Moreover, Britain was also the home of various famous philosophers and thinkers, for example John Locke (1632- 1704) and Thomas Paine (1737- 1809), whose theories of individual rights and equality played a significant part in the history of human rights not only in Britain but even beyond its frontiers.18 Locke’s ideas inspired the French when they adopted their Declara- tion of the Rights of Man in 1789. Paine argued for democracy and the ideas of the French Revolution in his book “The Rights of Man”, published in 1791, and played a significant role in both the American and the French Revolutions. However, these influences were not strong enough to cause a change in the rather conservative embossed British political landscape which were obsessed by the idea that it was much better to protect freedom by the common law rather than trust to affirmations of fundamental rights which always came without any efficient legal mechanism for providing effective protection. Paine’s and Locke’s contemporaries, for example Edmund Burke (1729- 1797), described ideas of individual freedoms as meaningless abstractions and so continued his successors, the 19th century Utilitarians around Jeremy Bentham (1748- 1832).19 These influences were by this time far stronger and thus accepted as general political opinion. The famous jurist A.V. Dicey (1835- 1922) must be mentioned in this context. He ar- gued that the unwritten assumption, that every subject is free to do whatever is not prohibited or restricted by law, is inherent in the British system. He named it the model of “negative rights”: Rights were not expressly written down but were protected by judicial rulings or the common law.20 This in turn led to the characterisation of Britain’s approach towards civil rights as “re- sidual”: every person is free to do anything in so far as it is not forbidden by a common law principle. Freedom of speech for example is limited by the common law of libel, blasphemy or other rules or legislation such as the Official Secrets Act 1989.21 To define the content of a particular liberty one has thus merely to subtract from its totality the sum of the legal restraints to which it is subject.22 Dicey’s constitutional theory is seen as the basis of the traditional legal approach to civil liberties in Britain.23 Subsequent British governments have continued to follow this approach which is the counterpart of the constitutional model of “positive rights” as defined in other liberal constitutions in the world, for example in France, Germany or the United States.
The doctrine of legislative supremacy distinguishes the U.K. significantly from those countries in which a written constitution in the narrower sense imposes express limits on the legislature and entrusts the ordinary or a constitutional court to decide whether the acts of the legislature are in accordance with the constitution. Those kinds of constitutions guarantee fundamental rights against infringements by the state and other public authorities. The power of the courts in constitutional systems of that type is known as “judicial review”: to declare legislation invalid as it infringes fundamental rights of the constitution.24 The constitutions of France, Italy, Germany and the United states have taken a similar approach.
Until the membership in the European Community, there was no judicial review of this kind in the U.K. Indeed, in Britain the term “judicial review” almost always refers to the courts’ control of administrative actions of public authorities. Thus judicial review is rather seen as a concern of administrative law.25 The prevailing opinion amongst British constitutional lawyers is that judicial review of legislation is undemocratic, because it may lead to the invalidation of a legislative measure by a few judges which had been enacted by a parliamentary democratic elected majority in Parliament26 and thus lead to a “government by judges”.27 Moreover it is considered that justiciable guaranties as set out expressly in a written constitution, induce delay and uncertainty, because politicians will not be sure what they are entitled to do until a constit u- tional court has given its opinion. Effective guaranties thus obstruct governments from doing what they want to do and are expected to do.28 Instead a legal check on Parliament, reliance is entirely placed on political argument and public opinion to act as restraints to any temptations felt by government ministers and Members of Parliament to adopt oppressive legislation.29 The British view that civil liberties are essentially residual in conjunction with the doctrine of su- premacy of Parliament is questionable as the following example will demonstrate: If everyone is free to do whatever is not prohibited by common law, it means in turn that in the absence of legislation on a particular matter, the government may also be free to do whatever is likes irre- spective of the impact on civil liberties. This illustrated by the case Malone v. Metropolitan Police Commissioner30 where the plaintiff claimed an injunction to stop telephone tapping on the warrant of the Home Secretary. In that case, the court was unable to stop the practice of the police because there is no right of privacy recognised by English law and at that time no statute governed telephone tapping.31
Britain’s model of residual rights is also responsible for the fact that courts have not been able to use civil liberties to redress government or parliamentary inaction. No British court could compel Parliament to amend legislation with a decision that existing statutes do not com- ply with the constitution’s provisions of a particular individual liberty set out there.32 A different approach is taken in jurisdictions where constitutions guaranty positive rights. In Germany for example, the Federal Constitutional Court, the Bundesverfassungsgericht, is, according to Arti- cle 93(1)(2) of the German constitution, empowered to either declare the challenged statute unconstitutional and thus void, or proclaim in its judgement that the statute is merely incompati- ble with the constitution but not “unconstitutional” in the former sense. In the latter case, the legislator is given the opportunity to either abrogate the statute or amend it in a way as to make in compatible with the constitution.33 The court is even entitled to set a time limit for the legislator to amend the legislation. A ruling of this type is possible only when rights are positively guaranteed. It cannot be taken on basis of the common law pos ition.34
Since every independent Commonwealth Country and indeed nearly every country in the world has a written liberal constitution,35 the question arises why there is no such written constitution in the U.K. The answer is strongly linked to historical facts. The political circum- stances under which constitutions where commonly drafted indicate, that constitutions were framed on remarkable turning points in the history of the respective country.36 Examples are the emancipation of a country from a colonial regime or the establishment of fundamental principles of a new system of government subsequent to a revolution of defeat in war.37 Typical examples of the former group are the former Commonwealth Countries, for example the United States or later on India and Nigeria which adopted constitutions when they gained independence from the British Empire. Examples of the latter origin are the first French Constitution of 1791, adopted after the French Revolution 1789, and the constitutions of Germany, Italy and Japan which were adopted after the end of the Second World War. It is the latter group in particular which strongly emphasises the protection of civil liberties.
In Britain, none of these historical factors had caused the drafting of a written constitu- tion. Indeed, there were two revolutions in England during the 17th century and the only period in history when there has been sustained discussion about a constitution was that century.38 The first revolution, the English Civil War (1642- 8), ended with the execution of King Charles I in 1649 and the creation of a republican Commonwealth by Act of Parliament which at the same time introduced a process to remove any remaining reference to England’s monarchy.39 Based on political revolutionary ideas which emerged in the Civil War, Oliver Cromwell (1599- 1658) drafted in 1653 his “Instrument of Government” which is described as “the first written consti- tution of the British Islands”.40 It aimed to balance the power between Parliament and the new head of state, the so- called Protector, who ruled England from then on. However, with the death
1 Hereinafter abbreviated ECHR or European Convention.
2 “Bringing Rights Home,” The Economist, 24 August 2000, <http://www.economist.com/PrinterFriendly.cfm?Story_ID=342080> accessed 20.05.2003.
4 “A law fit for a prince,” The Guardian, 03 October 2002, <http://www.guardian.co.uk/Print/0,3858,4513891,00.html> accessed 20.05.2003.
5 Cf. Bradley, A.W. & Ewing, K.D., Constitutional and Administrative Law (13th ed. 2002, Longman) at p.403.
6 The conventions of the International Labour Organisation (ILO), founded in 1919 and since 1949 a specialised agency of the United Nations, must be mentioned here in the first place. The ILO was set up to promote internationally recognised minimum standards of basic labour rights. One the European level, the Council of Europe’s Social Charter, adopted in 1961 and revised in 1996, pursues similar goals.
7 Cf. Bradley, A.W. & Ewing K.D., op.cit., at p. 403.
8 Barendt, E., An Introduction to Constitutional Law (1st ed. 1998, Oxford University Press) at p. 29.
10 Cf. Barendt, E.. op.cit., at pp. 3 et seq. and 46; De Smith, S. & Brazier, R. Constitutional and Administrative Law (8th ed. 1998, Penguin) at p. 48.
11 Barendt, E., op.cit., at p.1.
12 De Smith, S. & Brazier, R., op.cit., at p. 6.
13 Bradley, A.W. & Ewing K.D., op.cit., at pp. 12 et seq.
14 Barendt, E., op.cit., at p. 33.
15 Cf. Singh, R. The future of human rights in the United Kingdom: Essays on Law and Practice (1st ed. 1997, Oxford) at p. 1.
16 Klug, F., Starmer, K. & Weir, S., The Three Pillars of Liberty - Political Rights and Freedoms in the United Kingdom (1st ed. 1996, Routledge) at p. 4.
19 Ibid. at p. 5.
21 Cf. Barendt, E., op.cit., at p. 46.
22 De Smith, S. & Brazier, R., op.cit., at p. 388.
23 Cf. Klug, F., Starmer, K. & Weir, S., op.cit., at p. 5.
24 Barendt, E., op.cit., at pp. 7 and 17.
25 Cf. Barendt, E., op.cit., at p. 18.
27 De Smith, S. & Brazier, R., op.cit., at p. 389.
29 Cf. Klug, F., Starmer, K. & Weir, S., op.cit., at pp.74- 82.
30 1979 Ch. 344.
31 Ibid. at pp- 345, 346 and 357.Please note that this legal gap was subsequently remedied by the Interception of Communications Act 1985, after the plaintiff succeeded with his complain before the European Court of Human Rights: the court held that the U.K. was in breach of Article 8 ECHR. Cf. Malone v. United Kingdom 19857 E.H.R.R. 14.
32 Cf. Barendt, E., op.cit., at p. 48.
33 Michalowski, S. & Woods, L., German Constitutional Law - The Protection of Civil Liberties (1st ed. 1999, Ashgate) at pp. 43 et seq.
34 Barendt, E., op.cit., at p. 48.
35 Cf. De Smith, S. & Brazier, R., op.cit., at p. 8.
36 Ibid.; Barendt, E., op.cit., at p. 2.
38 Cf. Barendt, E. at p. 5.
39 Lyon, A., Constitutional History of the United Kingdom (1st ed. 2003, Cavendish Publishing) at pp. 227 et seq.
40 Ibid. at p. 230.
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