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The United Kingdom has a long and established tradition of avowed respect for its subjects' human rights.[citation needed] At the same time, the UK, like many nations, has also had a history of both de jure and de facto racial and ethnic-religious discrimination, and, even in recent history, occasional violations of basic human rights, particularly in times of national security crises. In recent years, however, British human rights legislation has been criticised by conservatives for excessive attention to the human rights of offenders at the expense of those of victims; many high-profile cases, such as those of Learco Chindamo[1] and the 2006 Afghan hijackers case,[2] have attracted controversy, sparking rightwing calls for the review of the Human Rights Act 1998 and other legislation.

Contents

The British citizen and the state

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The notion of citizenship

In most democratic countries, the notion of citizenship (as opposed to that of nationality) recognises that a State owes to its people certain inalienable rights which are characterised as "fundamental" in the sense that they enjoy a specially protected status in domestic law. In return, it is accepted that the citizen is expected to meet certain standards and comply with certain requirements vis-à-vis the State.[3]

This concept of citizenship is unknown to English constitutional law which, under the influence of Burke, Bentham, Austin, Dicey and Jennings, has treated British citizens as "subjects of the Crown without the benefit of positive and fundamental constitutional rights giving protection against the state and its agents." The rights that are recognised - "the liberties of the subject" - are "residual and negative" in nature, i.e. the individual is free to do what he or she likes save insofar as the activity is restricted by the law.[4]

Absence of a codified constitution

The situation is compounded[citation needed] by the absence of an enforceable, constitutionally protected Bill of Rights or a written constitution, which, along similar lines to the United States Bill of Rights or the Declaration of the Rights of Man and Citizen, would define the relationship between the citizen and the State, including the rights owed by the State to the citizen and vice versa. The basis of the relationship between State and citizen is instead constructed on a variety of statutory provisions and common law rules which, taken en masse, seek to confer on the citizen certain rights and liberties normally associated with citizenship, whilst also imposing certain duties. For example, the case of Entick v. Carrington in 1765 established the limits within which officers of the State could act, the Reform Act of 1867 accorded a wider right to vote, and the National Insurance Act 1911 instituted a basic welfare system. These rights apply regardless of the nationality of the individual in question.[4]

Human rights under domestic law

Right to life

Protection of the right to life is primarily ensured by the criminal law (the crimes of murder and manslaughter). Some protection is also offered by the civil law where, for example, the Fatal Accidents Act 1976 allows relatives of people killed by the wrongdoing of others to recover damages. Capital punishment had by 1998 been abolished in respect of all offences.

The law also attaches importance to the preservation of life: aiding and abetting a suicide is a criminal offence (see the Suicide Act 1961) and euthanasia is unlawful (see the Bland case). Furthermore, there is a duty upon medical professionals to keep patients alive unless to do so would be contrary to the patient's best interests based on professional medical opinion (the Bolam Test), taking into account his or her quality of life in the event that treatment is continued.

Where an asylum-seeker claims the existence of a threat to his or her life in the event of deportation, this threat must be balanced against evidence of the risk the person poses to national security were he or she to remain in the UK. Such persons may also be able to rely on the principle of the "common law of humanity" which obliges the state "to afford them relief and to save them from starving" (see R v Inhabitants of Eastbourne (1803) 4 East 103).

Freedom of expression and conscience

Regarded as one of the most important human rights, the courts have stated that there is no difference between the protection offered by the common law, and that guaranteed by the European Convention on Human Rights.[5] The freedom of expression of Members of Parliament is encouraged and guaranteed by parliamentary privilege.

The right can be restricted where it is justified in the public interest, for example where national security concerns prevail (see the case of Ponting) or where countervailing interests of privacy, public order or religious tolerance must take priority. In addition, the law may also require that in certain situations information is kept confidential or may place a restriction on its dissemination. This is the case of the confidentiality and defamation laws, as well as the offence of contempt of court. Television, radio and other broadcast media are also subject to legal regulation (see for example the Press Complaints Commission and Ofcom).

Freedom of conscience is related to the freedom of expression and allows an individual to hold certain views without fear of persecution, it also includes the freedom of religion.

Right to free assembly

The right to free assembly is considered an aspect of the right to freedom of expression. Simply put by Lord Denning, it is the right for ""[e]veryone [..] to meet and assemble with his fellows to discuss their affairs and to promote their views".[6] However, as noted by Lord Bingham,[7] the approach adopted by English law to this right has been "hesitant and negative, permitting that which was not prohibited". This can be seen in Dicey's "An Introduction to the Study of the Law of the Constitution" (1959) where he writes that "[a]t no time has there in England been any proclamation of the right to liberty of thought or to freedom of speech", and that "it can hardly be said that our constitution knows of such a thing as any specific right of public meeting".[8] Viewed in this light, the development of a right to free assembly can be seen as a relatively recent constitutional development largely brought on by the gradual growing influence of the European Convention on Human Rights on English law.

The exercise of the right to free assembly has been restricted by the common law as well as legislation. Thus, the criminal offence of breach of the peace is committed when harm is done to a person or his property, or there is a threat of harm, and that harm is caused by an "assault, affray, riot, unlawful assembly or other disturbance."[9] Furthermore, the Public Order Act 1986 allows the police to place restrictions on public assemblies and the Public Order Act 1936 outlaws the wearing of political uniforms at a public meeting when they suggest an association with a political object. More recently, the Serious Organised Crime and Police Act 2005 introduced measures limiting the right to demonstrate in Parliament Square, and the Criminal Justice and Public Order Act 1994 gives the police powers to break-up certain public gatherings. It is, however, recognised that there is a right to picket (TULR(C)A 1992).

Right to personal privacy

The right to personal privacy is not precisely defined and can be more properly described as the cumulative effect of a collection of different rights. There is no general right to privacy in English law and the courts, when faced with cases alleging an invasion of privacy, have made it clear that the creation of such a right can only be done by Parliament.[10] A patchwork of different torts combine to protect an individual from harassment, including the dissemination of information about him or her, see the torts of trespass, harassment, Defamation, nuisance and malicious falsehood. The criminal law also provides a certain level of protection - it is an offence to use violence to obtain unauthorised access to a property (CLA 1977 and the Protection from Eviction Act 1977) or to intentionally harass a person (POA 1986). A person's right to communicate privately is also protected to a certain degree (RIPA), as is his or her right of access to personal information (DPA 1998). The right to a private life, mentioned below, also links in with this right.

In recent cases involving celebrities the House of Lords have sought to remedy the absence of a right to privacy by extending the protection offered by the law of confidence. Therefore, the model Naomi Campbell was able to obtain damages from a newspaper which had published photographs of her leaving a Narcotics Anonymous meeting,[11] and Michael Douglas and Catherine Zeta-Jones successfully sued Hello! for publishing unauthorised photographs of their wedding; OK! which had purchased the exclusive rights to the photographs was also able to obtain redress on the basis that it had paid a large sum of money for the images, giving them therefore commercial value worthy of protection by the law. Giving this innovative judgment, Lord Hoffmann emphasised that the ruling did not amount to the recognition of image rights in English law.[12]

No arbitrary searches or seizures

Protection against arbitrary searches and seizures overlaps with the rights to liberty, privacy and natural justice. In English law, the right to be free of arbitrary searches and seizures is found mainly in the legislation regulating the powers of the police to conduct searches and take evidence. Therefore, under the Police and Criminal Evidence Act 1984, a constable's right to stop and search persons and vehicles is limited by section 2, as are the powers of a Justice of the Peace to authorise the entry and search of premises. In addition, section 60 of the Criminal Justice and Public Order Act 1994 allows a senior police officer to authorise all police officers in a locality to stop and search any pedestrian or vehicle where the officer has grounds for believing that the individual is carrying an 'offensive weapon' or a 'dangerous instrument'. In 1998 this legislation was extended to allow the officer to require the person to remove clothing worn for the purpose of concealing his identity, and to confiscate that article of clothing. Special extended powers also apply in the case of terrorist suspects.

In civil cases, a judge may grant an Anton Piller order authorising the search of premises and seizure of evidence without prior warning. The order's purpose is to prevent the destruction of incriminating evidence, particularly in cases of alleged intellectual property infringement.

Right to respect for private and family life

An individual's right to respect for his or her private or family life is protected insofar as the activity being pursued has not been outlawed or restricted by the state. In that respect, the fact that an individual has consented to the performance of an act which would otherwise be unlawful does not change the status of the act; thus, in a case involving acts of sado-masochism committed in private between two consenting adults, the House of Lords held that the victim's consent to the acts did not afford their author a defence to charges under the OAPA 1861.[13]

Similarly, an individual is free to make choices as to his private life, for example in pursuing homosexual relationships, but the law may not in certain circumstances intervene to ensure that his status and rights are not affected as a result of these choices. In R v. Ministry of Defence, ex p. Smith the Court of Appeal upheld the Ministry of Defence's policy not to admit homosexuals to the armed forces;[14] the claimants later brought a case before the European Court of Human Rights which found violations of Articles 8 and 13. The Court of Appeal held in another case that it was reasonable for the parents of a child up for adoption to refuse consent to adoption on the ground that the proposed adopter is a lesbian.[15]

The right to respect for family life is qualified by the broad principle that the welfare of the child is paramount and parental rights must take second place. As expressed by Lord Scarman, "parental rights are derived from parental duty and exist only so long as they are needed for the protection of the person and property of the child", and by Lord Fraser, "parental rights to control a child do not exist for the benefit of the parent".[16] The effect of this is to allow state intervention in family life where justified in the interests of the child in question, and the Children Act 1989 gives effect to this by providing a basis on which decisions relating to a child's welfare are made. Section 1 of the Act provides that a court must, when taking a decision with regard to a child, take into account the child's wishes and feelings.

There is no general right to marry.[17]

Right to bodily integrity

The bodily integrity of an individual is protected by the criminal law (see OAPA 1861) and, in some circumstances, the civil law (see the tort of battery).

Right to personal liberty

An individual's right to liberty is protected against interference by the state by two principles. Firstly, an individual is free to do anything which is not prohibited by law. Secondly, the state can only interfere with a person's liberty where permitted by law. In addition, the tort of false imprisonment and the crime of kidnapping guarantee some protection against the deprivation of liberty, as does the right of habeas corpus. Where an individual is lawfully arrested on the basis of an arrest warrant, the length of his detention is prescribed by statute; the detainee's rights and the powers of the police during the period of detention are also regulated (see PACE 1984).

Freedom of association

The right of freedom of association implies the right to join, form, and withdraw membership from groups, associations and partnerships of different kinds. Respect of this principle can be found in the relative ease by which companies and trusts can be set up. The right is also expressed by the doctrine of freedom of contract whereby one individual has a full and free right to enter into a contract with another individual, and also by the lack of regulation of political parties.

In employment law, an individual has the right in certain circumstances to affiliate with a trade union, an employee can claim unfair dismissal if he is dismissed for trade union activities and is protected from discrimination on the basis of his trade union activities. However, there is no obligation on employers to recognise collective bargaining agreements except in certain very limited circumstances and their role has declined significantly.

The right of freedom of association can be restricted on grounds of public order and national security. See for example the Public Order Act 1936 and the Prevention of Terrorism (Temporary Provisions) Act 1989.

Right to participate in government

The Representation of the People Act 1983 confers the right to vote on British subjects and citizens of the Commonwealth and Ireland who are resident in the UK. In addition, citizens of Member States of the European Union have the right to vote in local elections and elections to the European Parliament. The right to vote also includes the right to a secret ballot and the right to stand as a candidate in elections.

Right to protection of the law

A number of principles combine to guarantee an individual a certain level of protection by law. Firstly, the presumption that a person is innocent of a crime of which he is accused until it is proved otherwise. In discharging the burden of proof, the onus is on the prosecution (see Woolmington v. DPP). Secondly, according to the principle of nullum crimen et nulla poene sine lege, an individual cannot be convicted of an offence which was not provided for by law at the time of his conduct. Thirdly, an individual is entitled to confidential and free legal advice (see legal aid). Finally, every person is entitled to a fair and speedy trial and free and unimpeded access to the courts.

Right to property

Protection of the right to own and enjoy property is found in the criminal offence of theft, by intellectual property laws and by the principle that there can be no taxation except that which is authorised by Parliament. In addition, the principle of natural justice affords protection of property in that a court with powers to affect an individual's property rights is obliged to allow that individual the right to be heard before it proceeds (see Cooper v Wandsworth Board of Works (1863)). The right to property is qualified by compulsory purchase laws.

Economic and social rights

The right to education is guaranteed by the Education Act 1944, and the right to housing is enshrined in the Housing Act 1985. The enactment of the National Minimum Wage Act 1998 installed a minimum wage and the Social Security Contributions and Benefits Act 1992 provides access to social security benefits.

The right not to be unjustly excluded from the exercise of a trade or profession has been recognised by the courts (see Nagle v Feilden [1966] 2 QB 633).

There is no positive right to healthcare. The National Health Service Act 1977 imposes a duty on the Secretary of State to provide "adequate" healthcare, but the courts have not thusfar been willing to enforce this duty.

There is no unqualified right to strike in English law and participation in strike action will generally constitute a breach of the employment contract of the workers concerned, even a criminal offence in certain cases. However, dismissal of an employee for taking strike action will constitute unfair dismissal.

Gender recognition

The Gender Recognition Act 2004 allows transsexual people to change their legal gender.

Rights conferred by European Union law

To these rights can be added other rights and 'freedoms' as recognised by European Community law. These include the so-called "Four Freedoms of Movement" enabling citizens of the Member States of the European Union to (a) move freely between Member States, (b) provide services in another Member State, (c) to move capital between States and (d) to move goods between States without restriction. The rights to equal pay and to equal treatment in the workplace and with regard to social security are also recognised.

In addition, Articles 8 - 8E of the Treaty on European Union introduce the notion of 'Citizenship of the European Union' which confers five rights on citizens of the Member States: (a) the right to move and reside freely within the Member States, (b) the right to vote and stand for election in the Member State in which the EU citizen resides, (c) the right to protection by the diplomatic or consular authorities of any Member State in a country where his or her own State is not represented, (d) the right to petition the European Parliament, and (e) the right to apply to the European Ombudsman.

Rights conferred by international law

The United Kingdom is party to a number of international treaties and agreements which guarantee fundamental human rights and freedoms. Although such agreements have no direct legal effect in the UK until they have been given formal effect by a domestic law, their provisions have a bearing in the drafting of domestic legislation and by the interpretation of domestic law by the courts. Ministers are recognised to have a duty to comply with international law and citizens may reasonably expect them to do so.[3]

Legislation

European Convention on Human Rights

UK role

The UK played an important role in the drafting of the Convention, with figures such as Arthur Goodhart, John Foster QC and the UK-based Hersch Lauterpacht providing the impetus for the creation of the Council of Europe in 1949 as a means of guarding against the rise of new dictatorships and to provide the citizens of Soviet-occupied countries with a beacon of hope.

The initiative in producing a legally-binding human rights agreement had already been taken by the International Council of the European Movement, an organisation whose cause had been championed by Winston Churchill and Harold Macmillan, and whose international juridical section (counting Lauterpacht and Maxwell Fyfe amongst its members) had produced a draft convention.

Chaired by Maxwell Fyfe and the former French resistance leader Teitgen, the Legal Committee of the Council of Europe's Consultative Assembly proposed that the Council's Committee of Ministers draw up a convention which would take in and ensure the effective enjoyment of the rights proclaimed in the United Nations' Universal Declaration of Human Rights of 10 December 1948, as well as establishing a European Court and Commission of Human Rights. The Committee agreed and the text of what was to become the European Convention of Human Rights was in the main drafted by Sir Oscar Dowson, a retired senior legal adviser to the Home Office.

Ratification

There was grudging support for the Convention back in the UK where Attlee's Labour government were in power. The Lord Chancellor Jowitt, the Colonial Secretary Griffiths and the Chancellor Sir Stafford Cripps wanted to protect the British Empire against what they perceived as subversive European influences. They were also keen to protect their own ministerial powers against review by foreign judges whose values were unknown. This, combined with fears that some British practices such as emergency detention without trial, led to the government denying British citizens a right of petition to the European Court of Human Rights or the Court's jurisdiction to try cases involving British matters.

Nevertheless, the UK became the first state to sign the Convention on 8 March 1951, and the first to ratify it with effect from 23 September 1953. No domestic legislation was introduced and no attempt was made to implement the rights into UK law until the passing of the Human Rights Act 1998. The right to petition the European Court was eventually allowed in 1966.

Currently, over 45 countries have ratified the Convention. Over the years, protocols have been added through agreement between participating nations - not all protocols must be agreed to by all nations, though it is encouraged.

Right of petition

Following ratification of the ECHR, the campaign began for the recognition of the right of British citizens to take their cases before the European Court of Human Rights - 'the right of petition' - and, as part and parcel of this, the recognition of the Court's jurisdiction. The Conservative government in power from 1951 resisted the right of petition on the grounds that the common law would come under scrutiny by an international court. In December 1964 Terence Higgins MP tried to persuade Harold Wilson's new Labour administration to alter the UK's position, as did the British judge at the European Court of Human Rights, Lord McNair.

In 1965 Wilson informed the House of Commons that the right of petition would be recognised for an initial period of three years with effect from 14 January 1966. At the time the government were concerned that the Burmah Oil Company would take advantage of the new right to contest the legality of the War Damage Act 1965 (which deprived the company of its right to compensation to damage caused during the Second World War as had been recognised by a decision of the House of Lords), and so the date chosen fell outside the six month limitation period for challenges to the 1965 Act.

Campaign for incorporation

The first public call for the incorporation of the Convention into UK law was made in 1968 and was repeated in 1974 by Lord Scarman and by Roy Jenkins in 1976. In 1978 a House of Lords Select Committee published a report recommending incorporation which was debated in the Lords leading to an amendment being moved requesting that the government introduce legislation on the matter. Lord Wade succeeded in securing the Lords' approval for a draft bill but it did not make any progress in the Commons where Alan Beith's unsuccessful attempt to secure a second reading of the bill was poorly attended. In 1986 Lord Broxbourne secured the Lords' approval for his incorporation bill, but was unsuccessful in the Commons, even though a second reading had been obtained.

By 1991 the momentum for incorporation had grown, garnering support from organisations such as Charter88, Liberty and the Institute for Public Policy Research - the latter two having published proposals for a British Bill of Rights incorporating the rights. Incorporation was also advocated by senior members of the judiciary, both past and present, including Lord Gardiner, Lord Hailsham, Lord Taylor and Lord Bingham, by the Law Society and the Bar Council, also by two former Home Secretaries, Roy Jenkins and Leon Brittan.

"Bringing Rights Home"

The Labour Party leader John Smith QC made a speech on 1 March 1993 entitled "A Citizen's Democracy" in which he called for a 'new constitutional settlement, a new deal between the people and the state that puts the citizen centre stage'. This objective found its way into the Labour Party's proposals for constitutional reform published in 1993, and reiterated at their Conference in that year where a two-stage process was outlined: the incorporation of the Convention, followed by the setting-up of a Commission to prepare a British Bill of Rights.

In 1994 Lord Lester introduced a bill in the Lords which was based on the New Zealand Bill of Rights which would give the ECHR a similar status in UK law as that accorded to European Community law, i.e. allowing courts to disapply future and existing Acts of Parliament which were incompatible with the ECHR, imposing a duty on public authorities to comply with the ECHR and making provision for effective remedies (including damages) for breaches of the ECHR. Introduced during a period of concern over the impact of European Community law on the sovereignty of Parliament, the bill had a rough ride through the Lords and was subject to wrecking amendments by Conservative ministers.

Upon the advice of senior members of the judiciary, a second bill was introduced in February 1997 which, unlike the first bill, did not confer the power on the courts to strike down Acts of Parliament. The effectiveness of the new bill would depend on the courts' willingness to attribute to it a special constitutional status in UK law and to interpret it widely. The bill had been introduced shortly after the publication on 18 December 1996 by the shadow Labour Home Secretary Jack Straw of a consultation paper headed "Bringing Rights Home" which put forward the case for incorporation of the ECHR into domestic law. On 5 March 1997 a Labour and Liberal Democrat Consultative Committee on Constitutional Reform chaired by Robin Cook and Robert Maclennan published a report calling for the creation of a "Human Rights Commissioner" to oversee the operation of the bill and to bring cases on behalf of those seeking protection of their rights.

The election of Tony Blair's Labour Party in May 1997 led to the publication of a white paper on the bill - "Rights Brought Home: The Human Rights Bill" - which received its second reading on 3 November 1997. The Liberal Democrats supported the bill, as did numerous eminent crossbenchers - Lord Bingham, Lord Scarman, Lord Wilberforce, Lord Ackner, Lord Cooke of Thorndon and Lord Donaldson. The bill was opposed by the Conservative Party, although several eminent backbenchers rebelled against the party line, most notably Lord Renton and Lord Windlesham.

The bill successfully negotiated the Commons and the Lords as the "Human Rights Act 1998" and entered into force on 2 October 2000.

Human Rights Act 1998

The Act seeks to give direct effect to the European Convention on Human Rights in domestic law, thereby enabling claimants to bring an action directly before UK courts instead of having to take their case to the European Court of Human Rights, as had previously been the case. The Act makes it unlawful for a public body to act contrary to certain rights prescribed by the Convention, and allows a UK court to award a remedy in the event of a breach. The Act only has horizontal effect, i.e. it cannot be invoked in disputes between private parties.

Should an Act of Parliament be passed which conflicts with the Convention, the courts cannot, however, overrule or disregard it. The later Act must be interpreted, in sofar as is possible, consistently with the Human Rights Act, but must be implemented, regardless of whether it is lawful according to the convention or not. The court can make a "declaration of incompatibility", but even this cannot force a change, merely strongly encourage reconsideration by Parliament, which remains sovereign.

The Human Rights Act 1998 has been severely criticised by UK political figures and the media for putting the rights of offenders over those of victims, leading to short prison sentences and lenient treatment of criminals. After a tribunal ruled that Learco Chindamo, the Italian national who murdered headteacher Philip Lawrence in 1996, could not be deported to Italy after his release from prison, opposition leader David Cameron called for the abolition of the Act and its replacement with a "British Bill of Rights".[1] Although the Labour government, under former prime minister Tony Blair, was responsible for introducing the Act, the perceived leniency of sentencing has been criticised by Blair and other senior Labour figures.[18] The 2006 Afghan hijackers case, where a group of Afghan men who hijacked an aircraft in order to enter the UK were granted leave to remain in the UK, was severely criticised in the British media[2] and by both opposition and government politicians.[19]

Privacy

The European Convention includes a right to privacy. This is one right that British law had not taken seriously beforehand, and there was a lot of speculation in the legal community as to how far the new act would change the law; battles between privacy and free speech were expected. Although Naomi Campbell and Sara Cox have both won high-profile cases, the law has not had quite the impact that had been anticipated. Indeed, the House of Lords in the case Wainwright v. Home Office (2003) involving the routine strip-searching of visitors to a prison, recognised that only Parliament itself could create a specific right to privacy. The claimant later applied to the European Court of Human Rights which found that there had been a violation of Article 8 of the Convention (right to privacy).

Security legislation

Northern Ireland

During the 1970s and 1980s, the British government focused a lot of effort on measures to combat the activities of the Provisional Irish Republican Army (PIRA) in Northern Ireland and Great Britain. Included in these measures, the government curtailed the civil liberties - and arguably the human rights - of some interned PIRA suspects. The Ministry of Defence stated "moderate physical pressure" was applied to the men. The European Court of Human Rights ruled that this constituted "cruel and inhuman treatment", but fell short of torture in a landmark 1978 case.[20]

War on terrorism

Since 2001, the "War on Terrorism" has led to new human rights concerns.

The most recent criticism has concerned the Prevention of Terrorism Act 2005, a response to a perceived increased threat of terrorism. This act allows the house arrest of terrorist suspects where there is insufficient evidence to bring them to trial, involving the derogation (opting-out) of human rights laws, through the imposition of control orders. This aspect of the Prevention of Terrorism Act was introduced because the detention without trial of nine foreigners at HM Prison Belmarsh under Part IV of the Anti-terrorism, Crime and Security Act 2001 was held to be unlawful under human rights legislation, by the House of Lords, in A and Others v. Secretary of State for the Home Department (2004).

Both the above Acts have been criticised for the lack of parliamentary discussion; the Anti-terrorism, Crime and Security Act 2001 went from introduction to Royal Assent in 32 days, the Prevention of Terrorism Act 2005 in 17.

The Civil Contingencies Act 2004 has also been criticised as giving the government very wide-ranging power in an emergency.

On February 2, 2005, Parliament's Joint Committee on Human Rights also suggested that the proposed legislation on the British national identity card might contravene Article 8 of the European Convention (the right to respect for private life) and Article 14 (the right to non-discrimination).[21]

Internment

Following the September 11, 2001 attacks, the Anti-Terrorism, Crime and Security Act 2001 was passed.

Part 4 of the Act provided for the indefinite detention without charge of foreign nationals certified by the Home Secretary as "suspected international terrorists" where such persons could not be deported on the grounds that they faced a real risk of torture, inhuman or degrading treatment if removed to their home country.

Part 4 did not create new detention powers - under the 1971 Immigration Act, the Home Secretary has the power to detain a foreign national pending deportation. Instead, Part 4 removed a limitation on detention powers imposed by the requirements of Article 5(1)(f) of the European Convention on Human Rights (which provided, among other things, that someone could only be detained for a short period prior to deportation). This was achieved by the British government derogating from the ECHR on the basis that the threat to the UK amounted to a 'public emergency threatening the life of the nation' within the meaning of Article 15.

However, the use of immigration detention powers meant that, although the British government could not force them, the detainees were technically free to return (albeit facing a real risk of torture). However, 2 detainees did leave - one to France and one to Morocco.

In 2002, the Special Immigration Appeals Commission held that indefinite detention under Part 4 was incompatible with the right to non-discrimination under Article 14 ECHR, on the basis that only suspected terrorists who were foreign nationals were subjected to detention, while suspects who were British nationals remained free. However, SIAC's declaration of Part 4's incompatibility with Article 14 was quashed by the Court of Appeal.

In December 2004, the House of Lords held 8-1 that Part 4 was incompatible with both Article 5 and Article 14 ECHR on the basis that indefinite detention was both a disproportionate measure notwithstanding the seriousness of the terrorist threat, as well as discriminatory.

Following the judgment, the government moved to introduce control orders as an (highly controversial) alternative measure. The use of control orders and the repeal of Part 4 of the 2001 was secured by the passing of the Prevention of Terrorism Act 2005.

The UK before the European Court of Human Rights

By 2004, the European Court of Human Rights had, in 130 cases, found violations of the European Convention of Human Rights by the United Kingdom.[4] These judgments cover a wide variety of areas, from the rights of prisoners to trade union activities. The decisions have also had a profound effect and influence on the approach adopted by the UK to the regulation of activities which could potentially engage Convention rights. As one author has noted, "[t]here is hardly an area of state regulation untouched by standards which have emerged from the application of Convention provisions to situations presented by individual applicants."[22]

Notable cases involving violations of the Convention include:

  • Criminal sanctions for private consensual homosexual conduct (Dudgeon, 1981);
  • Refusal to legally recognise transsexuals (Rees, 1986);
  • Different ages of consent for homosexuals and heterosexuals (Smith and Grady, 2000);
  • Parents' rights to exempt their children from corporal punishment in schools (Campbell and Cosans, 1982);
  • Sentencing a juvenile young offender to be "birched" (Tyrer, 1978);
  • Wiretapping of suspects in the absence of any legal regulation (Malone, 1984);
  • Restrictions on prisoners' correspondence and visits by their lawyers (Golder, 1975);
  • Routine strip-searching of visitors to a prison (Wainwright, 2006);
  • Allowing the Home Secretary rather than a court to fix the length of sentences (Easterbrook, 2003);
  • Admitting testimony obtained under coercion as evidence (Saunders, 1996);
  • Keeping a suspect incommunicado in oppressive conditions without access to a solicitor (Magee, 2000);
  • Extradition of a suspect to the United States to face a capital charge (Soering, 1989);
  • Granting the police blanket immunity from prosecution (Osman, 1998);
  • Shooting of Provisional Irish Republican Army suspects in Gibraltar without any attempt to arrest them (McCann, 1995);
  • Killing of a prisoner by another mentally-ill detainee with whom he was sharing a cell (Edwards, 2002);
  • Investigation of an unlawful killing by police officers conducted by the police officers who participated in the killing (McShane, 2002);
  • Failure to protect a child from ill-treatment at the hands of his stepfather (A, 1998);
  • Failure by a local authority to take sufficient measures in the case of severe neglect and abuse of children by their parents over several years (Z, 2001);
  • Ineffective monitoring of a young prisoner who committed suicide during a short sentence (Keenan, 2001);
  • Keeping a disabled person in dangerously cold conditions without access to a toilet (Price, 2001);
  • Granting of an injunction against the Sunday Times for publishing an article on the effects of thalidomide (Sunday Times, 1979);
  • Injunction against the Sunday Times for publishing extracts from the Spycatcher novel (Sunday Times (no. 2), 1991);
  • Ordering a journalist to disclose his sources (Goodwin, 1996);
  • Agreement obliging employees to join a certain trade union in order to keep their jobs (Young, 1981);
  • Keeping a database of DNA samples taken from individuals arrested, but later acquitted or have the charges against them dropped (Marper, 2008).

Human trafficking

There has been a growing awareness of human trafficking as a human rights issue in the UK, in particular the trafficking of women and under-age girls in to the UK for forced prostitution. A particular high profile case resulted in the conviction of five Albanians who ‘trafficked’ a 16 year old Lithuanian girl and forced her into prostitution.[23] According to Home Office figures, there are over 1,000 cases of trafficking each year. Under pressure from organisations such as Amnesty International, the UK government has recently signed the Council of Europe Convention on Action against Trafficking in Human Beings.[24][25][26]

Human rights organisations

See also

References

  1. ^ a b David Cameron: Scrap the Human Rights Act, 24 August 2007, Daily Telegraph
  2. ^ a b Hijacker ruling draws criticism, BBC News, 12 May 2006
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27. Home Office, Home Secretary signs vital anti-trafficking convention, 23 March 2007, accessed 25 July 2007

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