A more recent version of these Human Rights In The Uk Pre 1998 notes – written by Cambridge/Bpp/College Of Law students – is available here.
The following is a more accessble plain text extract of the PDF sample above, taken from our GDL Constitutional and Administrative Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Human Rights in the UK Pre-1998 _______________________________________________________
Key Themes??Relationship between the unwritten UK Constitution and Civil Liberties/Human Rights o 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?
? 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 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: o Right to life o Right to liberty of the person o Right to the delivery of justice in public o Right to a fair hearing o Prohibition of retroactive criminal punishment o Freedom of expression o Right to legal advice o Prohibition of torture o Prohibition of deprivation of property without compensation o Privilege against self incrimination o 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
Buy the full version of these notes or essay plans and more in our GDL Constitutional and Administrative Law Notes.