The UK has a tradition of civil rights and civil liberties dating back at least to the Magna Carta in the 13th century. Whilst successive governments have repealed most of the Magna Carta over the past 200 years or so, its guarantee of due process of law remains in effect. Other old statutes, such as the Bill of Rights 1689, contain civil liberties provisions that continue to apply today.
The UK is, however, somewhat unusual in comparison to many other countries in that civil rights and civil liberties come from a hodgepodge of statutes and common law, and are not enshrined in any unitary document such as a written constitution. Thus, Parliament is, in effect, the ultimate guarantor of civil rights and civil liberties in the UK.
Difference between civil rights and civil liberties
Before we continue our analysis, it’s important to stress that the terms ‘civil rights’ and ‘civil liberties’ are not synonymous.
Civil liberties describe basic rights and freedoms designed to forestall tyranny and arbitrary government. Such rights and freedoms include:
- free speech;
- free assembly;
- the right to marry;
- the right to vote;
- the right of privacy;
- the right to a fair trial; and
- the right to be free from unreasonable searches of your home or person without a warrant.
Civil rights describe basic rights to be free from unequal treatment or harassment based on certain protected characteristics, such as race, gender, age, disability, religion/belief, sexual orientation and nationality.
An example to demonstrate the difference
One way to consider the difference between civil rights and civil liberties is to look at 1) what right is affected, and 2) whose right is affected. For example, as an employee, you do not have the legal right to a promotion, mainly because getting a promotion is not a guaranteed civil liberty. But, as a female employee you do have the legal right to be free from discrimination in being considered for that promotion – you cannot legally be denied the promotion based on your gender (or race, or disability, etc.). By choosing not to promote a female worker solely because of the employee’s gender, the employer has committed a civil rights violation and has engaged in unlawful employment discrimination based on sex or gender.
Human Rights Act 1998
The primary statutory source of civil liberties in the UK is the Human Rights Act 1998, which incorporates the provisions of the European Convention on Human Rights into domestic law. The UK was one of the original signatories to the Convention, and one of the first countries to ratify it (in 1951). The Convention guarantees a wide range of civil liberties, such as the right to life, the right to a fair trial, and the right to respect for private and family life, and a number of others.
Until the Human Rights Act 1998 was enacted, a person in the UK who wanted to enforce his rights under the Convention had to make an application to the European Court of Human Rights in Strasbourg. The Human Rights Act 1998 enables a person to apply to the courts in the UK to enforce Convention rights that the Act incorporated.
The Act requires that all UK legislation be put into practice and interpreted in a way that is compatible with the Convention. It also gives the court the power to find that subordinate legislation (such as statutory instruments) is invalid if it is inconsistent with the Convention and to make a declaration that primary legislation (such as a statute) is incompatible with the Convention. If the court declares that a statute is incompatible with the Convention, a government minister is then given the power to change the statute so that it becomes compatible with the Convention.
The Act also prohibits a public authority from acting in a way that is not compatible with the Convention, and enables people to sue the public authority if it does so. For the purposes of the Act, private entities that carry out public functions (such as a privately run prison) are regarded as public authorities, and people can sue them if they act in breach of the Convention.
In making decisions in cases where people claim a breach of the Act, the court is required to make its decisions so as to develop UK case law in a way that is compatible with the Convention, and is required to take account of case law developed by the European Court of Human Rights.
Since the Human Rights Act 1998 came into effect, there have been many decisions by the UK courts – some of which have been controversial – in which they have found that a public authority has breached a person’s rights under the Act.
Equality Act 2010
The Equality Act 2010 will come into force in stages, with the main provisions taking effect in October 2010.
The Equality Act consolidates some existing laws relating to the way people’s race, gender, age, sexual preference and socio-economic status affect their legal status and activities, and creates a number of new requirements. The Act will require public bodies to take greater account of the need to treat people equally and fairly in carrying out their functions. It will also allow employers to take positive action in order to promote equality – by, for instance, specifically requesting job applications from people of certain races in order to bring about a more diverse workforce.
The Act is an extremely broad-ranging law affecting both civil rights and civil liberties.
The constitutional basis for civil rights and civil liberties
Although legal scholars have debated the question whether there is a form of fundamental law that gives rise to “constitutional rights” in the UK, the consensus view seems to be that there is not. The legal protection for people’s civil rights and civil liberties instead arises from statutory law and treaties (such as the Human Rights Act 1998 and the European Convention on Human Rights).
Perhaps the main, widely-acknowledged constitutional principle that protects people’s rights and liberties in the UK is the supremacy of Parliament. This is, in effect, the principle that Parliament is not in any way restricted in its law-making authority. A Parliament cannot bind future Parliaments, and therefore any Act of Parliament can be subsequently altered or repealed.
The supremacy of Parliament would appear to apply to all UK law relating to civil rights and civil liberties. Even ancient statutory protections can be repealed. As indicated above, most of the provisions of the Magna Carta were repealed by Parliament after being valid law for centuries. In addition, it would seem that the UK courts’ powers under the Human Rights Act 1998 – which are granted by statute – are also subject to any future Parliamentary action.
And human rights?
‘Human rights’ encompass both civil liberties and civil rights. The term also includes rights and liberties that have been legally recognised, perhaps at the international level in documents like the International Covenant on Economic, Social and Cultural Rights (to which the UK is a signatory), but which people may find difficult to enforce domestically.
For example, Article 13 of the Covenant recognises the right of everyone to education and states that government must ensure that education is “directed to the full development of the human personality and the sense of its dignity” and “enable all persons to participate effectively in society”.
Article 13 then lists steps the government should take to achieve the full realisation of the right. But the Covenant provides no means to ensure compliance or measure success, at least not in any qualitative sense, to ensure public/state education enables people to participate “effectively” in society.
Enforcing your rights and protecting your liberties
If you feel your rights or liberties have been compromised, you may want to research your options under the Human Rights Act 1998 and the Equality Act 2010 by visiting the Ministry of Justice website. The Equality and Human Rights Commission website also has a wealth of information about human rights law.
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