Miss Christian 12E F9 Lesson #1 Wednesday 14th September 2011 Civil Liberties taken from https://www.tes.com/teaching-resource/civil-liberties-and-human-rights-6454767 by alainechristian Created Dec 16, 2014 Updated Dec 16, 2014 LicenceTES-V2 This resource is available to UK teachers. Edited by Heidi Moden

What are Civil Liberties? Civil Liberties - the Freedoms/Rights that belong to individuals - they protect the individual from the power of the state (generally described as negative rights - eg: right for state NOT to intervene unless the law prevents a certain activity) Many overlap with Human Rights which belong to all individuals Read the handout CIVIL LIBERTIES PRE-1997. What do you notice about civil liberties in the UK at this time? Was change needed? What change would you have recommended?

What changes have been made? The Freedom of Information Act (2000) What is it? What civil liberties does it protect? How? What criticisms have been made of it? Can you find any recent examples of high profile FOI requests that have been granted? Can you find any recent examples of high profile FOI requests that have been denied? Passed 2000 - but came into force 2005 Brought in to try and overcome perception of Government secrecy Gave citizens the freedom to see Government documents However, final version of the Act = ‘watered down’ – the exemptions are extensive Gives right to see documents other than those which would prejudice National Security or those which would ‘cause damage to the public interest’ - criticised for being too wide and vague However -the Act is important - often used by the media e.g.: MPs expenses scandal 2009

What changes have been made? The wider use of Judicial Review What is it? What civil liberties does it protect? How? What criticisms have been made of it? Can you find any recent examples of high profile judicial review cases/requests? Passed 2000 - but came into force 2005 Brought in to try and overcome perception of Government secrecy Gave citizens the freedom to see Government documents However, final version of the Act = ‘watered down’ – the exemptions are extensive Gives right to see documents other than those which would prejudice National Security or those which would ‘cause damage to the public interest’ - criticised for being too wide and vague However -the Act is important - often used by the media e.g.: MPs expenses scandal 2009

What changes have been made? Human Rights Act 1998 What is it? What civil liberties does it protect? How? What criticisms have been made of it? Can you find any recent examples of high profile human rights cases/incidents? Passed 2000 - but came into force 2005 Brought in to try and overcome perception of Government secrecy Gave citizens the freedom to see Government documents However, final version of the Act = ‘watered down’ – the exemptions are extensive Gives right to see documents other than those which would prejudice National Security or those which would ‘cause damage to the public interest’ - criticised for being too wide and vague However -the Act is important - often used by the media e.g.: MPs expenses scandal 2009

Protection of Civil Liberties (post 1998) ANALYSIS: Protection of Civil Liberties (post 1998) Since 1998 Judges have been able to protect Civil Liberties by way of Judicial Review, The Human Rights Act and use of their discretion (refusing to proceed with a trial if decide that the defendant will be denied Natural Justice - e.g.: Matrix Churchill case 1992) However the growth of the ‘Human Rights Culture’ and ensuing willingness of Judges to challenge ministers (see Phillips), the impact of the HRA which has widened the ability of Judges to intervene in politics and a perceived trend for govts to expand their own powers has led to conflict between senior judges and the executive Despite major advances in protection of individual rights since 1997 which have been warmly welcomed by campaigning groups such as Liberty (eg: HRA, FOIA) - there are still critics who point to a civil liberties ‘blind spot’

Protection of Civil Liberties (post 1998) ANALYSIS: Protection of Civil Liberties (post 1998) This is reflected in the growth of legislation that expands to power of the state and weakens civil liberties/human rights and constitutes, some would say, a drift towards ‘authoritarianism’ Remember it is too simplistic to merely discuss clashes between the executive and the judiciary - we must also acknowledge that the debate centres around competing freedoms/rights not whether rights are being eroded by the govt. per se For example groups such as Liberty see the right to liberty/freedom from detention without trial as a basic feature of a Liberal democracy (an idea reflected in the Law Lords decision to release the Belmarsh suspects in 2004) However, the govt. would argue they are defending rights by measures such as control orders, detention etc rights are relative and civil liberties must be balanced against civil obligations/duties

How effectively does the judiciary protect civil liberties in the UK? By preserving judicial independence Judicial Review Judges uphold European Convention of Human Rights and all statutory rights of citizens Under the rule of law all people should be treated equally – the role of judges is to uphold the Rule of Law Effective Control Judges can express their views in the media and stimulate debate on civil liberties issues The Judiciary can make judgements under the Human Rights Act to protect civil liberties

How effectively does the judiciary protect civil liberties in the UK? The Government still has some control over the judiciary Judges can’t be proactive – they have to wait for cases to come to them Ineffective Control The Human Rights Act is not binding on parliament – Parliament can pass an Act that goes against the HRA as long as it makes a declaration saying that it is doing so. The lack of a codified and entrenched constitution makes the interpretation of civil liberties difficult and open to controversy

Miss Christian 12E F9 Lesson #1 Wednesday 14th September 2011 Human Rights Act

What are your human rights?

The Human Rights Act (1998) Everyone has the right to life Everyone has the right to be free from torture and inhuman and degrading treatment or punishment Everyone should be free from slavery or forced labour Everyone has the right to liberty and security of person Everyone has the right to a fair trial, and to be presumed innocent until found guilty, if they are facing a criminal charge No one can be found guilty of a crime if there was no law against it when the act was committed Everyone has the right to respect for their private and family life, home and correspondence Everyone has the right to freedom of thought, conscience and religion Everyone has the right to freedom of expression Everyone has the right to freedom of peaceful assembly and association Everyone has the right to marry and found family Everyone has these rights, regardless of their gender, race, language, religion etc.

Why is Article 13 of the ECHR not enshrined the UK HRA? Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity. Article 13 is the Right to an Effective Remedy. The Government felt it was not necessary to incorporate these Articles as the HRA means that convention rights are secured though domestic courts available to all and this in itself provides the effective remedy.

Protocols Protocol 1, Article 1 Everyone has the right to own property You have the right to peaceful enjoyment of the things you own. Public organisations can not interfere with things you own. Nobody should take your things away from you unless there are very good reasons e.g. you are causing danger to other people. Protocol 1, Article 2 Everyone has the right to education Parents have the right to choose the type of education for their child based on their religious and philosophical beliefs. You have the right to have the same chance as everyone else to go to school or college and learn the things you want.

Protocols Protocol 1, Article 3 Everyone has the right to take part in free elections Elections must be free and fair and take place by a secret ballot. The national law sets the minimum age this can take place at. Protocol 13, Article 1 The death penalty shall be abolished No one shall be condemned to such penalty or executed.

Overview of the HRA Passed 1998 - came into force in 2000 Incorporated the European Convention on Human Rights into UK Law A major Constitutional Reform - explicit and codified legal definition of individual rights Widened capacity of Judiciary to protect civil liberties and to check the power of the executive ECHR now binding on all bodies (including govt. departments; agencies; the police; prison officers; armed forces etc) except for UK Parliament Examples of Human Rights which are protected by the HRA - the right to life; the right to a family life; the right to liberty; the right to a fair trial; the right to privacy; the right of free speech Sometimes rights conflict with each other - eg: recent controversy over super injunctions = the right to privacy in conflict with the right to free speech The HRA 98 did not establish any new rights - but it has made the European Convention on Human Rights much more accessible to UK citizens who can now seek redress through the British Courts It is NOT an entrenched Bill of Rights - It can be repealed under the principle of Parliamentary Sovereignty

Overview of the HRA Overview of the HRA It cannot be used to overturn Acts of Parliament - under the principle of Parliamentary Sovereignty If a court believes that legislation does not comply with the ECHR it issues a ‘declaration of incompatibility’ This in practice forces Parliament to amend the legislation to bring it in line with the ECHR OR to set aside certain of its provisions by a process of derogation E.g.: derogation of article 5 - 2001-05 to bring in tougher anti terrorism legislation If Govt. introduces legislation which is in conflict with he ECHR - it can make a declaration of incompatibility to alert Parliament Parliament may refuse to pass the legislation If it does however, the new law will stand In addition, as previously noted - if a citizen challenges a law in the courts on the basis that it is incompatible with the ECHR the courts can also issue a declaration of incompatibility this does no meant that the law is invalid - but it will usually meant that the Govt. revises the law - eg Belmarsh 2004

Does the HRA really protect our rights? Supporters of the HRA Critics of the HRA Act allows Judges to overstep their traditional role - through their interpretation of the HRA, they are effectively able to ‘rewrite’ legislation = ‘quasi legislative powers’ Interpretation of the HRA has been criticised for prioritising individual rights over those of society as whole - has been described as a ‘criminal’s charter’ e.g.: murderer of Philip Lawrence - not deported/ also 2010 case of 2 Pakistani terror suspects not deported Supporters of the HRA say that it has significantly strengthened the ability of Judges to apply the Rule of Law and to uphold individual rights It has provided greater protection for minorities Will, over time force Ministers etc to be more sensitive to Civil Liberties issues = improve trust in Govt and accountability HRA has made citizens more aware of their rights

Why have the Conservatives called for the removal of the HRA? Cut the number of deportation appeals by half by slashing the number of challenges allowed Ending abuse of Article 8 of the European Convention on Human Rights – the right to respect for private and family life. MOST RECENT EXAMPLE: the lengthy deportation of hate preacher Abu Qatada,

What have the coalition proposed in terms of a UK Bill of Rights?

What would a Bill of Rights be like? A Bill of Rights (BOR) is a document that specifies rights and freedoms of the individual and defines the legal extent of Civil liberty. If it is entrenched, then it will be ‘higher law’ and Constitutional Judicial Review will be possible (as in US) Some leading Conservatives advocate the replacement of the Human Rights Act with a British Bill of Rights - however, they are only arguing for a revised/perhaps weakened version of the HRA They do not envisage that it would be used to call other legislation into question

How would an entrenched BofR protect us? There would be profound implications for civil liberties, the judiciary and the UK political system as a whole (but NZ case study) It would bring to an end the current battles between judges/ministers over which rights should be upheld and in which circumstances Entrenchment would make designated individual rights unchallengeable It would widen the role of the Judiciary - their interpretation would be final (at present a Govt. can overturn a decision by making a law) It would enable a rights culture to be fostered whereby people understood their rights

Arguments FOR an entrenched BofR It would enable accountable Govt. which would ensure that Govt. was based on laws not arbitrary wishes of ministers The establishment of a ‘higher law’ is the only way that the Rule of Law can be upheld It would improve trust and confidence Protection of Liberty - it would give a clear and final definition of the proper relationship between individuals and the state Civil liberties would no longer be a battle over which rights were more important – would stand above the executive and parliament Educational benefits - It would strengthen awareness of rights and make politicians aware of the need to act in accordance with individual rights Consensus on rights - the foundations for a BOR already exist in the UK - ECHR/HRA - therefore the introduction of a BOR would be less controversial and easier than if these did not exist

Arguments AGAINST an entrenched BofR Rule by Judges - It would turn Judges into policy makers and lead to Judicial tyranny (i.e. Judges would be able to make laws and interpret them - undermine v vital checks and balances) It would mean an expanded role for Judges which may be undesirable - because they are unelected and are socially unrepresentative Politicisation - as Judges became more powerful - the political pressures on them would inevitably increase (systems in which Judges apply a higher law struggle to maintain Judicial independence) A Rights Culture - It would strengthen tendencies already fostered by the Human Rights Act to make citizens more aware of their rights Individual minority rights might be emphasised at the expense of wider needs of the community Society may become more litigious Artificial Rights - BOR would be created by legal and constitutional experts based on abstract principles

Should we have a UK Bill of Rights?