Human Rights in the UK Pre-1998

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Key Themes

• Relationship between the unwritten UK Constitution and Civil Liberties/Human Rights

  • Most other parties to ECHR have entrenched constitutions

• Shift in emphasis from political to legal constitutionalism – having something formal

• Enhanced role of the Courts & more judicial presence in political matters

• Encroachment of Parliamentary sovereignty

• Tensions between the judiciary & executive

Pre-1998 Protection

Was there adequate protection of civil liberties before HRA?

Magna Carta

• Peace treaty between King John & the Barons

• 1297 version in the statute book

• Not a true continuum from magna carta to HR today

• Protection of liberties of the Church; privacies of London; right to trial by jury

• Annulled 3 months after conception

Is the Magna Carta used as a counter to HR - shying away from a decentralised authority when, they say, there has been a constitutional history of human rights protection in UK?

Bill of Rights

• Jurors = freeholders

• Ban on cruel or unusual punishment

Distinction between Liberties & Rights

Liberties:

• Residual power i.e. whatever is not unlawful is lawful

• Absence of state power to interfere, but no positive action required by the State

• Scope of lawful conduct not fixed - much room for Parliament to legislate to make conduct unlawful?

Rights:

• Rights may require the State not to interfere and/or positively to do certain things

• Conduct is lawful because law grants a specific right to engage in it

• Scope of lawful conduct fixed - higher limitations on Parliament

Why was the ‘liberty approach’ deemed inadequate?

• Limited protection: the residual nature of liberty does not impose an obligation on the State to protect it

• Not easy to ascertain what constitutes lawful conduct (Am I allowed to do X)?

• Liberties are at constant risk of erosion: no clear legal boundaries means lawmakers may continue to impose an increasing number of restrictions

However the distinction was not really this clear cut: pre-1998 courts were not actually completely agnostic about the freedoms they were adjudicating on

Moreover, the HRA does not fully implement a rights-based model. It is nothing like the US or India legal orders - jurisdictions of constitutional supremacy (or as some people argue judicial supremacy).

Courts pre-1998

Constitutional rights in the common law:

• Dicey, ‘The general principles of the constitution (as for example the right to personal liberty, or the right of public meeting) are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the Courts’

• Ivor Jennings: “her majesty’s opposition”

• Smith’s Judicial Review rights conferred by common law:

  • Right to life

  • Right to liberty of the person

  • Right to the delivery of justice in public

  • Right to a fair hearing

  • Prohibition of retroactive criminal punishment

  • Freedom of expression

  • Right to legal advice

  • Prohibition of torture

  • Prohibition of deprivation of property without compensation

  • Privilege against self incrimination

  • Freedom of movement within UK

Protection through tort

Entick v Carrington

Messenger argued that they were acting under authority from Sec. of State

Held: no existing power under which the warrant had been issued; the search was therefore illegal

What about when there is no cause of action in tort?

Malone v MPC

In a Crown Court prosecution of the plaintiff, one of five defendants charged with handling stolen property, the prosecution admitted that there had been interception of the plaintiff's telephone conversations on the authority of the Secretary of State's warrant. The plaintiff issued a writ claiming inter alia that such interception had been, and was, unlawful, and he sought by motion an injunction against the Metropolitan Police Commissioner to restrain interception or monitoring of telephone conversations on his line. It was agreed to treat the motion as the trial of the action and, instead of the relief claimed in the writ, to seek relief in the form of declarations which, as finally settled, were grouped under the following heads:

(1) that interception, monitoring or recording of confidential conversations on the plaintiff's telephone lines without his consent, or disclosing them to third parties, or making use of them was unlawful, even if done pursuant to a warrant of the Home Secretary, and disclosing details of telephone calls was similarly unlawful; that, in the alternative, all such interception, monitoring or disclosure was unlawful, where made without the plaintiff's consent, to any officer in the Metropolitan Police, the Home Secretary or the Home Office or any officer thereof;

(2) that the plaintiff had a right of property, privacy and confidentiality in respect of telephone conversations on his telephone lines, and that interceptions, recordings and disclosures as in (1) were in breach thereof;

(3) that, in the alternative and in relation to human rights, there was no remedy under English law for interceptions, monitorings or recordings of conversations on his telephone lines or the disclosure of the contents thereof to third parties;

(4) that interceptions and monitorings of his telephone lines violated article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (which entitled everyone to "respect for his private and family life, his home and his correspondence");

(5) that, in the alternative, there was no effective remedy in the United Kingdom for any such violation of his private and family life, his home and his correspondence.

Held: (1) that under R.S.C., Ord. 15, r. 16, the court's power to make declaratory judgments was confined to matters justiciable in the English courts, and the binding declarations which it could make under the rule were declarations as to legal or equitable rights and not moral, social or political matters; that, accordingly, since the Convention of Human...

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