A foundational rule of for free democracy is the all citizens are equal, and so the security of fundamental human civil liberties is of crucial importance for autonomous effectiveness. In countless countries a declare of citizens’ civil liberties forms part of the constitution, and is particularly enshrined in law and also enforced by the courts. This has not occurred in the UK, which has no encode constitution. Instead, in an article from The UK’s transforming Democracy: the 2018 autonomous Audit, Colm O’Cinneide evaluates the much more diffuse and also eclectic means in i beg your pardon the UK’s political mechanism protects fundamental human legal rights through the person Rights Act and also other legislation, and also the courts and Parliament.

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Lady Justice, Old Bailey. Picture: Lonpicman via a CC BY-SA 3.0 licence/Wikimedia Commons

How must human being rights and also civil free be defended in a democracy?Liberal democratic states are currently expected to respect a selection of fundamental human rights set out in international human being rights treaties such as the europe Convention on person Rights (‘the Convention’). These expand from liberty from torture, come the appropriate to same trial and freedom from discrimination.It is normally recognised that the to work of any type of genuine democracy need to be based on respect because that these rights, without which people cannot participate easily or efficiently in the political process.

In the UK constitutional device it is generally assumed that the politics branches of government should pat a leading duty in solving disputes around the scope and substance of separation, personal, instance rights. However, the courts have come to be increasingly associated in adjudicating human rights issues over the last few decades. The defense of individual civil liberties is now usually regarded as forming part of the ‘mission statement’ of the justice branch the government, and also human rights cases now kind a considerable aspect of the case-load of the UK’s superior courts.

The person Rights Act

The human Rights plot (‘the HRA’), pass in 1998 through the very first Blair government, is central to the existing system of legal rights protection. That avoided the knotty problem of point out a list of specifically ‘British’ civil liberties by imposing a duty on all public authorities (aside from conference itself) come act compatibly v the civil liberties covered in the europe Convention of human Rights (hereafter ‘the Convention’), come which the UK has been a signatory since 1951. The Act also gave the UK court the power to overturn decisions by UK public authorities i m sorry breached Convention rights, however not to overrule legislation passed by Parliament. The court were provided the strength to explain such law to be ‘incompatible’ through the Convention, and to interpret it where possible in a Convention-friendly manner. However, the ultimate decision even if it is or no to adjust legislation that has a negative impact on Convention civil liberties was left in the hands of conference – which thus retains the final say regarding what constitutes brothers law.

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If an individual fails to get a remedy prior to the UK court under the HRA, they deserve to take a instance to the europe Court of human being Rights in Strasbourg, as taken place over voting civil liberties for prisoners in UK jails. Any kind of judgments make by the europe Court of human being Rights against the UK space not binding upon UK public authorities or Parliament. However, solid expectations exist the such judgments by the Strasbourg Court will certainly be complied with by the UK, in addition to all the claims in the board of directors of Europe.

In enhancement to the HRA, the common law and also other statutes passed by Parliament also play an important role in protecting individual rights by imposing vital legal constraints top top public authorities. Because that example, the Equality act 2010 prevents public authorities discriminating ~ above the communication of race, sex, disability and other grounds of same treatment. However, this extra resources of legit rights protection play supporting functions when contrasted to the HRA.

Despite these miscellaneous layers of legal protection, human being rights however remain a contested ide in the British political tradition. Lock are qualified of being interpreted and also understood in different ways. Deep disagreement often exists as to what precisely constitutes a breach that a an essential right. Furthermore, various views exist regarding when and how the courts need to intervene to defend individual rights. Political leaders regularly subject the HRA to criticism, and bemoan the affect exerted by the jurisprudence the the european Court of human being Rights (ECHR) end UK law. In 2010 and also again in 2015 the Conservative election manifesto proposed replacing the HRA with a ‘British invoice of Rights’, back in exercise Tory governments since 2015 have actually not been able come implement this idea.

Successive UK governments have additionally introduced legislation that has diluted protections for civil liberties and basic rights in the spheres of nationwide security/counter-terrorism, immigration and socio-economic entitlements: the is most likely that this pattern will continue. Brexit is posing more challenges, by in certain removing the safety and security blanket for details non-discrimination, migrant and also labour rights formerly provided by EU law.

The location of both the HRA and also European Convention of human Rights in ~ the UK’s legit system thus remains open up to debate, as does the condition of human being rights values much more generally: no consensus yet exists as to how person rights should ideal be safeguarded within the structure of the british constitution. And while the limit of legitimate rights defense in the UK is fairly strong, the is limited. Socio-economic civil liberties are specifically poorly covered, and also international human rights law has very restricted impact on UK legislation or policy.

Strengths, Weaknesses, Opportunities, hazards (SWOT) analysis

Current strengthsCurrent weaknesses
The UK’s constitutional society values civil liberties (at the very least in the abstract). There is a formal take on of person rights values within government. Many of lip service is payment to human rights worths both within and also outside of government. The UK is likewise an advocate for extending and improving human being rights security internationally.Little political agreement exists as to the actual problem of human being rights guarantees. The existing framework of UK legit rights defense (based on the HRA and European Convention) is vulnerable to political attack, with Conservative calls for a ‘British invoice of Rights’ to replace them. Judgments by the ECHR in Strasbourg the go versus UK policies or impede ministers’ executive activity capabilities on regular basis spark public attacks on the Court.
Current legislation provides a strong legal protection for core civil and political legal rights via by the interlinked HRA and European Convention on human Rights mechanisms.Brexit is removed the safety blanket for certain non-discrimination, migrant and labour civil liberties formerly detailed by EU law. The EU’s basic Charter of civil liberties is terminated by the 2018 regulation to withdraw from the EU.
In UK polite society, over there is a strong commitment to civil liberties values and activism. Human being rights and civil for free enjoy fairly strong political support, in details from younger age groups and in the devolved regions.UK governments have been continuously able to introduce legislation diluting rights protection, particularly in locations like national security, immigration and socio-economic entitlements.
The UK has a reasonably strong institutional framework for protecting rights, i beg your pardon extends past the court – consisting of the Equalities and also Human civil liberties Commission, and the joint Committee on human Rights in conference (see below).The limit of legitimate rights security in the UK is limited. Social and economic legal rights (for example, to receive ideal healthcare) room the most poorly established and also protected. International human being rights legislation has had actually a very limited impact top top UK law or policy.

Future opportunitiesFuture threats
Attempts to reform the currently Convention/HRA frame led to a pushback that has mobilised political support in favour the retaining them. So much the potential political expenses involved, and the inherent difficulties of developing any alternate framework, has actually meant politicians have actually not tried to implement major changes from the standing quo.Human rights stay contested ideas in British politics culture, and vulnerable to political attack – especially when the civil liberties of terror suspects, migrants, members the unpopular decimal groups and other disfavoured social groupings room at issue. Because that now, the place of legitimate rights defense within the UK’s constitutional culture remains uncertain.
The divisive nature of Brexit process may actually serve to to mark the prestige of legal civil liberties protection.The rise of right-wing populism as a politics movement, through its intense anti-immigration focus and also proneness to seeking ‘naïve statist’ solutions, has created a political climate where rights risk being swept away come placate ‘nativist’ sentiment.
Enthusiasm for person rights values continues to be very strong among younger period groups: they likewise continue to tempt support indigenous both pundit opinion-formers and large swathes of civil society. This bedrock of support could administer a platform because that further expansion of currently rights security in the future, in specific in areas such as socio-economic rights.

The UK’s slow and cautious embrace of human being rights

The UK only became a democracy in a systematic sense of the term by 1918 v the success of universal (male) suffrage after ~ a long procedure of constitutional struggle. In the previous years a vast political agreement had arised to the impact that the Westminster Parliament have to exercise its sovereign law-making powers (within the UK mainland itself) in a manner that respected both the ascendancy of legislation and straightforward civil liberties. (For obvious reasons, the legal rules applying in the brothers empire’s colonies were cure differently.) these political constraints, taken along with the limited degree of security afforded through the typical law to personal liberty, aided to offer rise to a society of individual freedom that to be comparatively well-developed for its era.

Until the 2nd World War and also even into the post-war duration most lawyers mutual the complacent see of the turn-of-the-20th-century legitimate scholar A. V. Dicey the ‘the securities for an individual freedom space in England as finish as the laws deserve to make them’. That argued:

‘In England no man can be do to experience punishment or to pay damages for any type of conduct not absolutely forbidden by law; every man’s legal legal rights or legal responsibility are practically invariably established by the simple Courts of the realm, and also each man’s individual rights are far less the an outcome of our constitution than the basis on which the constitution is founded.’

As Anthony Lester has commented, ‘the prevailing British constitution ideology…treated British subjects as “subjects of the Crown” without the advantage of an essential constitutional rights’. The liberties of the subject were ‘residual and negative in their nature’. The separation, personal, instance was cost-free to execute anything that the law had actually not forbidden, however enjoyed no embedded or constitutionally defended positive entitlements that might not be changed by new legislation or the exercise of ministerial prerogative powers. Respect for rights and freedoms in the UK thus depended upon Parliament reflecting restraint when it legislated on problem that impacted civil liberties. Even on the political left this view was accepted by the labour Party and trade unions. Castle feared that formally listing person rights would certainly restrict your future capacity to legislate in conference to achieve social or economic reforms. The might additionally introduce (conservative) judges together arbiters that what law was permissible.

However, as the 20th century progressed, this Diceyan consensus gradually began to be dubbed into question. The parliament restraint needed was not constantly forthcoming. For example, at assorted periods parliamentary regulation imposed substantial constraints upon polite liberties in areas such as nationwide security and counter-terrorism, profession union activity, and freedom the speech and also the press. The wide-ranging discretionary powers appreciated by publicly authorities were additionally prone come abuse, especially when it concerned colonial governance in the brother empire, and also to the therapy of immigrants, minorities and other groups lacking political power even within the home islands.

From the late 1960s on, this ‘legacy’ state that affairs came under boosting criticism from civil society organisations campaigning in the ar of legislation reform – such as Justice, Charter 88 and also Liberty (then dubbed the national Council for polite Liberties). In northern Ireland, throughout the years of the armed conflict in between 1969 and 1995, agents that the state were clearly involved in widespread human rights abuses. Taken together with growing concerns around the treatment of ethnic minorities and other delicate groups in ~ British society, these developments dealt additional blows to any type of lingering complacency around how liberties and also rights were safeguarded within the UK. The rolling back of the UK welfare state that started in the 1980s, combined with the bitterness controversies created by the trade union disputes of that era, likewise helped to erode confidence in the standing quo.

The political momentum in favour of revolutionary was additionally amplified by the introduction of the international human being rights movement in the wake of the second World War. As the language of human being rights gained in popularity, claims committed themselves to respecting one ever-growing variety of basic rights. Beginning with the europe Convention on human Rights (‘the Convention’) in 1951, the UK ratified a selection of UN and also Council the Europe contract instruments setup out a variety of binding human rights standards. Numerous of this commitments became the emphasis of civil society activism, and began to influence policy-making throughout a range of various fields. However, the ever-increasing salience of ‘rights talk’ additionally began to highlight locations where UK law and also policy dropped well short of developed human rights standards.

In this respect, the civil and also political rights set out in the Convention and the interpretation offered to these civil liberties by the europe Court of human Rights (ECHR) in Strasbourg became an especially influential. End time, the Court’s jurisprudence created a floor of minimum standards that all European claims were expected to respect. And, native the early on 1970s on, judgments of the Strasbourg Court started to reveal the existence of gaps in human being rights defense in UK law. Together a consequence, the Court’s jurisprudence resulted in significant changes being made come UK legislation in locations such as flexibility of expression, privacy, liberty from discrimination, liberty from inhuman and degrading treatment and also the appropriate to same trial. However, this additionally drew attention to the absence of a domestic counterpart to the ECHR, and the absence of any legal mechanism within British legislation which could perform the civil liberties protective duty being played by the Strasbourg Court.

The advance of the europe Union’s equality law, together interpreted and applied through the different Court of justice of the EU (CJEU), had a comparable impact, highlighting the gap that regularly existed in between rhetoric and also reality as soon as it pertained to the UK’s commitment to ethics of equality, and to non-discrimination more generally. Other areas of human rights law additionally brought right into focus brand-new shortcomings in the UK’s monitor record, in details when it came to the confident obligations implemented upon the state come take activity to defend vulnerable individuals and also groups in ~ especial risk of damage – such together children, persons with physical and mental disabilities, refugees and migrants, and also the homeless.

All of this factors added to fuelling farming disenchantment through the UK’s historic technique to human being rights issues, and in details with the lack of any an extensive legal human being rights protection. In response, british courts started in the beforehand 1990s to identify the presence of a restricted set that ‘common legislation rights’ such as flexibility of expression and also the best of accessibility to courts. Lock now understood legislation as subject to a presumption the Parliament did not intend to permit public authorities to violate these usual law rights, uneven the statutory text had express or clearly implied provisions to that effect.

However, the major shift in legal rights thinking to be a politics one. In 1995 a newly created (and evanescent) team (the work Rights Campaign) circularised labour constituency parties with a version resolution calling for the incorporation of the europe Convention on human being Rights right into UK law. This made it onto the final Conference agenda, and also was carried overwhelmingly, ending up being official work policy, and attracting continuing elite assistance within the party. By 1997, when the work Party returned to power after 18 year of being in opposition, the political climate to be ripe because that reform – which clearing the means for parliament to spread the human Rights plot (HRA) in 1998. Piloted v by lord Irvine (but nearly ignored in Tony Blair’s autobiography) the action qualifies as among the most far-reaching constitutional innovations since the establishment of the UK’s modern democratic structures.

The UK’s existing system that legal legal rights protection

The HRA included the key rights set out in the europe Convention on human being Rights into UK law and made it possible for individuals to sue public authorities once these legal rights are violated. It thereby introduced for the an initial time a comprehensive form of ‘rights review’ into the British legitimate system. The act also set out come strike a fragile constitutional balance – by leave parliamentary sovereignty intact, when making it possible for court to play an active role in protecting human rights.

A ar of the act imposes a duty on all public authorities (aside indigenous Parliament) to act compatibly through Convention rights. If a public government violates a Convention right, climate a court can award the victim the the breach a ‘just and also appropriate’ remedy. The courts nevertheless cannot set aside parliamentary legislation (unlike the instance with EU law). This pipeline Parliament v the final say as soon as it comes to determining the regulation as that relates to human rights issues. But the courts are required to interpret primary and secondary legislation under one section ‘as far as possible’ so regarding maintain conformity through Convention rights. Alternatively, whereby that is no possible, under another section the courts can concern a non-legally binding ‘declaration that incompatibility’, stating the the law in concern is incompatible v the Convention. Ministers and also Parliament are under no (legal) duty to respond to such a declaration, beyond the politics embarrassment involved. Yet it was designed to attract Parliament’s attention to the visibility of a situation of incompatibility through the UK’s human being rights responsibilities under the Convention – potentially resulting in a fast-track readjust of the law, if the politicians agree.

The HRA plan of rights protection was designed to occupational with the serial of Britain’s constitution traditions, quite than versus it. It maintained parliamentary sovereignty if attempting come ensure the Convention legal rights will nevertheless ‘exert a magnetic force over the whole political and also legal system’. Furthermore, due to the fact that coming into pressure in 2000, the machinery of the Act has by and huge functioned follow to that purpose. That is provisions have enhanced awareness of rights in government, while likewise making it easier for individuals to an obstacle national laws and practice i m sorry infringe their rights.

For example, decisions by the UK courts applying Convention civil liberties in line through the HRA framework have reformed defamation legislation by prolonging protection for freedom of speech, magnified the rights of patients undergoing mental health treatment, granted new rights to unmarried would-be adoptive parents in northern Ireland, and also clarified the civil liberties of persons with serious disabilities. Furthermore, certain major legislative reforms, including the Mental health Act 2007, the Coroners and also Justice act 2009 and also the protection of Freedoms action 2012, were passed partly in solution to HRA judgments – i m sorry had figured out problems with the justice and fairness of existing laws.

The legal security afforded by the HRA has been complemented by various other institutional structures. For example, the Westminster conference has developed a share Committee on person Rights (JCHR), created of members indigenous both the Commons and also the Lords, i beg your pardon scrutinises the person rights influence of legislative branch proposals and also existing law. External of Parliament, the official Equality and also Human civil liberties Commission has actually been created to encourage the UK’s compliance with human rights and non-discrimination. Furthermore, all the devolved authorities, consisting of the northern Irish and also Welsh Assemblies and also the Scottish Parliament, are compelled to comply v Convention rights by virtue of certain provisions collection out in the devolution statutes. This limit on the powers of the devolved authorities shows the presumption underlying the HRA that Convention civil liberties constitute a floor of legitimate rights protection that every public authorities must respect: it also demonstrates the degree to which rights protection has actually been woven into the towel of the UK structure in the wake up of Labour’s constitutional revolutionary agenda of the late 1990s.

Other statutes, such as the flexibility of information Act 2000 and the Equality action 2010, have also come come play vital role in protecting rights. In particular, the 2010 plot prohibits windy authorities native discriminating top top the basis of race, sex, disability and a range of other grounds and requires all public authorities to provide due for in the performance of their attributes to the require to eliminate discrimination and promote equality that opportunity. The ongoing advancement of the ‘common regulation rights’ jurisprudence through the superior courts has also contributed an additional layer of legit protection, emphasize by the UK can be fried Court’s current finding in R(Unison) v mr Chancellor the the imposition of employment tribunal fees had breached the common law principle of accessibility to justice.

Outside that the legitimate context, human being rights worths attract substantial support – in specific from civil culture groups. They also have attractive a certain degree the buy-in from plenty of public authorities, even if the level of this can vary considerably. UK international policy continues to be committed to promoting respect because that the international person rights architecture, and also most mainstream UK political voices endorse the importance of civil liberties – in the abstract, in ~ least.

Challenges come the legitimacy the UK human rights protection

Yet real difficulties remain through the defense of human rights in the UK. Legal rights security mechanisms such together the HRA emphasis on core collection of civil and political rights. Other types of human rights – in specific socio-economic civil liberties – absence substantive legit protection, with the majority of the UK can be fried Court confirming in R (SG) v Secretary the State for Work and also Pensions the unincorporated human rights treaty instruments do not form part the UK law. In many locations – in details the spheres of immigrant control, national security/counter-terrorism, flexibility of association and speech, and also the therapy of persons with psychological disabilities and other fragile groups – UK law has been the frequent subject that criticism from human being rights skilled committees at the UN and the the supervisory board of Europe.

Furthermore, the way in which the ECHR and also HRA offer as the keystones the the current British system of legal legal rights protection has come under sustained political assault (from the right or conservative forces) end the last few years. A right-wing push narrative has developed that portrays person rights adjudication together ‘fetishising’ or being excessively involved with the legal rights of decimal at the expense of the general public interest. The Hirst (No. 2) decision that the european Court of person Rights in Strasbourg on sinner voting legal rights attracted substantial political hostility, as have judgments by the EU and also UK court which have implemented constraints ~ above the power of ministers to deport non-nationals. Calls have actually been created a an essential re-think the the UK’s partnership with the Strasbourg Court, and by expansion with the Convention/HRA scheme of legal rights protection more generally. For example, lord Hoffmann in 2009 suggested that an international court like Strasbourg short the ‘constitutional legitimacy’ come impose its interpretation of the abstract rights set out in the text of the Convention on nationwide parliaments and also courts, and attacked what he witnessed as expansionist tendencies within the jurisprudence that the Court. Top politicians and also conservative think tanks have voiced similar views, expressing concern in specific that the HRA and also ECHR unduly expanded judicial power at the cost of politics decision-making.

In turn, there has actually been a pushback versus many of this claims. NGOs, academic commentators and political numbers (even for free Conservatives) have protected the HRA and also the Strasbourg Court’s jurisprudence. Castle argue that its ‘living instrument’ interpretative approach enables the Court to preserve the verity of its instance law by ensuring that it reflects modern moral and also social understandings of the main point content of human being rights. The discussion has likewise been made the the UK’s member of the ECHR has been a positive pressure for good, helping to improve respect for human being rights and providing crucial safeguarding duty in the context of northern Ireland. Pendant of the legal standing quo likewise make the situation that the ECHR link and also the provisions the the HRA is wholly compatible through the UK’s constitution values, including the rule of democratic self-governance together reflected in the theory of parliament sovereignty.

Despite this, movie critics of the HRA continue to argue the radical reform is needed. Important facets of the Conservative Party in specific support repeal of the HRA and its replacement by a ‘British Bull the Rights’, i m sorry would reduce the influence of Strasbourg ~ above UK law and also limit the existing limit of judicial protection of rights in locations such as national security and immigration control. The element Minister, Theresa May, has even said that serious factor to consider should be given to the UK leaving the european Convention mechanism of civil liberties protection.

However, formidable political obstacles lie in the method of any type of such radical reform. The devolved federal governments remain an extremely hostile to any type of tinkering v the HRA, which would call for adjustments to it is in made come devolved administration arrangements – and, in the instance of north Ireland, can breach the regards to the Belfast commitment 1998. Any kind of move top top the part of the UK to withdraw from the ECHR is likely to satisfy stiff diplomatic resistance from other European governments. Furthermore, any attempt come repeal the HRA is most likely to generate considerable legal uncertainty, and to trigger considerable political push-back within the UK.

All of these determinants mean the Conservative Party ambitions at various times and also in varying toughness to amend/repeal the HRA have thus much not been translated into concrete legislative proposals. However, it stays to it is in seen how this instance will play the end in the future. Brexit is already reshaping important elements of rights security in the UK. The EU (Withdrawal) act 2018 provides sweeping powers to the UK federal government to amend or repeal existing legislation/regulations i beg your pardon give effect to EU law. Countless observers fear that these powers could be used in the future to weaken the protection at this time afforded by EU regulation in locations such as equality law, labour law and also migrant rights. Furthermore, the global climate has actually grown much more hostile to person rights values an ext generally, v the increase of wild populism (especially nationalist-based) and also majoritarian/anti-migrant perspectives in countless different states. This trends likewise surface consistently in British political debates, do the future of human rights security in the UK look an extremely uncertain.

Conclusions

Once created on the statute books bills or charters the rights have mostly had tendency to become an ext and more embedded over time in the thinking and operations the the nations involved. The much longer that they deserve to endure and operate, the more challenging it becomes because that their movie critics or adversaries to abolish or change them. The inaction so far on earlier Tory pledges that a ‘British invoice of Rights’ instead of the HRA since 2010 could be evidence of together an effect. And the bedrock of support for human rights amongst younger age groups, pundit opinion-formers and large swathes that civil culture could yet carry out a platform because that further development of present rights protection in the future, in details in areas such as socio-economic civil liberties where the UK at this time falls short. This is likewise the area highlighted most by the Brexit process, through its polarising effects on UK society. Potentially, then, repeal that the HRA or withdrawal from the ECHR may loss off the politics agenda. In fact, the Brexit process may actually offer to highlight the importance of legal civil liberties protection, and also to strengthen support for the condition quo accordingly.

However, human rights law and concepts remain fragile to political assault – especially when they it seems ~ to safeguard anti-social minorities like terrorist suspects, or unpopular decimal groups, choose migrants. Right-wing populist politics movements, and some part of the press, v their extreme anti-immigration focus, have created a politics climate where rights risk being swept away come placate nativist sentiment. Because that now, the location of legitimate rights protection within the UK’s constitutional society remains uncertain. Much may depend ~ above the politics fall-out native EU withdrawal, and also how UK society responds come the current crisis of neo-liberalism.

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This is one extract from ours book, The UK’s changing Democracy: The 2018 democratic Audit, released by LSE Press. You can download the complete publication here, and the individual chapter here.