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Human rights in Scotland

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Human rights in Scotland

Human rights in the United Kingdom are set out in common law, with its strongest roots being in the English Bill of Rights 1689, as well as the European legislation. At the same time, the UK has also had a history of both de jure and de facto discrimination, and, 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 calls for the review of the Human Rights Act 1998 and other legislation.

The approach to rights and liberties

The domestic tradition

In the place of the concept of popular rights and sovereignty found in other democracies, the United Kingdom evolved a concept of parliamentary sovereignty under which the liberties of the individual are implications drawn from two principles. First, the "residual liberty" to act as one wishes so long as the activity is restricted by the law. Second, public authorities and The Crown can do only that which is authorised by law, and in particular may not interfere with individuals' liberties without statutory authority. In this perspective, the vision of individual rights is perceived more in terms of an "undifferentiated mass of liberty" rather than a bundle of separate positive liberties and freedoms which define the relationship between citizen and state. As Parliament is sovereign, liberties are freely alterable under the supervision of citizens' elected representatives who ensure that any encroachment is controlled and authorised for democratic purposes.

Moves toward change

During the twentieth century, a belief arose that some extra protection of human rights above and beyond parliamentary scrutiny was necessary. Doubts grew about the capacity of parliamentary controls, partly because of scepticism about Parliament's will to control the growing executive and the control by political parties of their MPs which allowed weak governments to avoid effective challenges. This scepticism went hand in hand with criticisms of the United Kingdom's political system and whether it is sufficiently representative of the range of opinion in the country. The doubts intensified with the experiences with terrorism in the 1970s and accession to the European Community in 1973 where Britain was exposed to other legal systems which did not share the same concept of parliamentary sovereignty and which gave stronger protection to human rights. In particular, European entry led to the notion that Parliament could be subject to the decisions of a higher legal order in the form of the European Court of Justice. This was highlighted in the Factortame litigation where the House of Lords was required to 'disapply' provisions of an Act of Parliament which were contrary to European Community law, effectively ruling them invalid. In addition, increasingly influenced by international human rights law, comparative constitutional law and European law, English courts became more sympathetic towards the concept of popular sovereignty and fundamental rights and liberties.


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 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.


There was reluctant 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 disapproved of ratification on the basis of the loss of sovereignty that would result. Jowitt also saw a threat to the domestic system of common law and the risk in allowing judgments to be made by an unknown foreign court. He nevertheless believed that ratification was necessary from a political point of view as a refusal would be, in his view, difficult to justify at home and abroad. Political pressure aside, the overall government view was that the Convention was only aimed at preventing a totalitarian takeover and not human rights issues within a functioning democracy. In essence, it was thought that Britain had little to lose from ratification but rejection could risk some loss of face in Europe. The Convention had more support among Conservative party politicians, in particular Winston Churchill who believed that it could help unify Europe on the basis of the rule of law.

The UK became the first state to deposit its instrument of ratification of the Convention on 8 March 1951, with the Convention taking effect on 3 September 1953 after the tenth ratification was deposited. No legislation was introduced and no steps were taken to give effect to the Convention's rights in domestic law until the passing of the Human Rights Act 1998.

Right of petition

Two aspects of the Convention gave the United Kingdom's representatives to the Council of Europe cause for concern: the establishment of a European Court of Human Rights and the right of individual petition to the Court. It was thought that the possibility to submit complaints was open to abuse and could be used for political purposes, notably by members of the Communist Party, rather than for genuine grievances. In addition, it was feared that the consequences of accepting individual petition would be to cause instability in the Colonies as Britain's authority could be undermined. Britain's attempts to exclude the provisions relating to these two issues were unsuccessful but it managed to ensure that they were optional.

The Conservative government elected in 1951 ratified the First Protocol to the ECHR in 1953 relating to the rights to property, education and free elections, but resisted the right of petition on the grounds that the common law would come under scrutiny by an international court. Labour's election in 1964 led to reconsideration of the issue and this time the only senior dissenting voice was that of the Home Secretary, Frank Soskice. Although willing to accept the right of petition, he objected to the compulsory jurisdiction of the Court on the basis that it would deprive the United Kingdom of a degree of flexibility in dealing with petitions and could lead to political embarrassment. Nonetheless, by 1965 a majority of government ministers believed that the Court would not pose a significantly greater threat to national sovereignty or to political survival than the Commission of Human Rights to which the United Kingdom was subject. Further pressure for acceptance came from the British judge and President of the Court, Lord McNair, the Secretary General of the Council of Europe Peter Smithers, Terence Higgins MP and various non-governmental organisations.

As had been the case for ratification in 1950, the Labour government concluded in 1965 that there was little to be lost from giving in to the pressure to recognise the Court and the right of petition and In December 1965, Wilson informed the House of Commons that the right of petition would be recognised for an initial period of three years. 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 depriving the company of the right to compensation for damage caused during the Second World War as recognised by a a House of Lords' decision, the acceptance was timed to fall outside the six-month limitation period for challenges to the Act and the United Kingdom's acceptance also explicitly stated that it applied only to claims arising after its effective date. The declarations of acceptance were deposited by Robert Boothby MP with the Secretary General of the Council of Europe on 14 January 1966.

Campaign for incorporation

The first public call for the incorporation of the Convention into national law was made in 1968 by Anthony Lester who published a pamphlet entitled Democracy and Individual Rights. Then in 1974 Lord Scarman called for an entrenched instrument to challenge the sovereignty of Parliament and protect basic human rights. The following year a Charter of Human Rights was unveiled by the Labour Party National Executive Committee, although this was regarded as insufficient by certain Conservative politicians including Leon Brittan, Geoffrey Howe and Roy Jenkins who saw an entrenched Bill of Rights as more effective in preventing abuses by the executive of individual rights. In 1976, a draft Bill of Rights was moved in the House of Lords by Lord Wade and 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 was poorly attended. There was concern at the time about judges deciding cases involving human rights which could lead them from their traditionally impartial role to political issues. 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. Edward Gardner's 1989 bill to incorporate the Convention also failed on its second reading. At the time, official Conservative party policy was in favour of maintaining the existing constitutional arrangements which it saw as ensuring a high standard of protection of individual rights.

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.

Bringing Rights Home

Following the election of John Smith as Labour Party leader in 1992, Labour policy towards the Convention - which had been against it before and during the 1992 General Election - began to change in favour of incorporation. Smith gave 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".[3] This was followed by the Labour Party Conference in October 1993 which agreed a two-stage policy whereby the Convention would be incorporated into law followed by the enactment of a Bill of Rights. It was planned to entrench Convention rights using a "notwithstanding clause" similar to that in Section Thirty-three of the Canadian Charter of Rights and Freedoms, which would have led to the Convention prevailing over legislation passed by Parliament unless stated otherwise. A human rights commission would also be set up to monitor and promote human rights.

In November 1994 Lord Lester introduced a bill in the Lords which was based on the New Zealand Bill of Rights which would give the Convention a similar status in UK law as that accorded to European Community law by allowing courts to disapply future and existing Acts of Parliament which were incompatible with it, imposing a duty on public authorities to comply and making provision for effective remedies including damages for breaches. Introduced during a period of concern over the impact of European Community law on the Parliamentary sovereignty, the bill did not receive support from the Conservative government and failed in the Commons due to lack of time.

On 18 December 1996, the shadow Labour Home Secretary Jack Straw and Paul Boateng published a Consultation Paper headed "Bringing Rights Home" which set out Labour's plans to incorporate the Convention if it won the next election. The paper focused on first stage of Labour's human rights policy and how the Convention should be incorporated, notably as regards its ability to override statutory 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 legislation and to bring cases on behalf of those seeking protection of their rights.

Passage of the bill through Parliament

The election of Labour in May 1997 led to the publication of a white paper on the bill - "Rights Brought Home: The Human Rights Bill".

The bill was introduced by Lord Irvine to the House of Lords on 3 November 1997.[4] In response to a question from Lord Simon, Lord Irvine confirmed that the bill did not in fact incorporate the Convention, but rather gave "further effect in the United Kingdom to convention rights".[5] Lord Irvine also rejected a proposed amendment by the Conservative Lord Kingsland which would have had the effect of obliging the domestic courts to apply the case-law of the European Court of Human Rights, stating that the obligation to take it into account was sufficient.[6] The Liberal Democrats supported the bill, as did several crossbenchers including Lord Bingham, Lord Scarman, Lord Wilberforce, Lord Ackner, Lord Cooke and Lord Donaldson. The bill was opposed by the Conservative Party, although some backbenchers rebelled against the party line, most notably Lord Renton and Lord Windlesham.

The second reading in the House of Commons took place on 16 February 1998 where the bill was introduced by Jack Straw who stated that it was "the first major Bill on human rights for more than 300 years".[7] In addition to the incorporation of the Convention in domestic law, Jack Straw indicated that the bill was intended to have two other significant effects: the modernisation and democratisation of the political system by bringing about "a better balance between rights and responsibilities, between the powers of the state and the freedom of the individual"[7] and the introduction of a culture of awareness of human rights by public authorities. Amendments rejected included giving courts a greater degree of flexibility with regard to Strasbourg case-law and referring to the margin of appreciation accorded to states by the Court,[8] as well as limiting the obligation to interpret legislation compatibly with Convention rights only when it was 'reasonable' to do so.[9] A successful amendment was tabled by Labour backbencher Kevin McNamara which had the effect of incorporating into the bill Articles 1 and 2 of Protocol 6 of the Convention abolishing the death penalty in peacetime.[10]

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

Human Rights Act 1998

Main article: Human Rights Act 1998

Key provisions

The Act seeks to give direct effect to the European Convention on Human Rights in domestic law by enabling claimants to bring an action in national courts instead of having to take their case before the European Court of Human Rights, as had previously been the case. The Act makes it unlawful for a public authority to act in a manner contrary to certain rights prescribed by the Convention and allows a UK court to award a remedy in the event of a breach. In principle, the Act has vertical effect in that it operates only vis-à-vis public bodies and not private parties. There are however certain situations in which the Act can be indirectly invoked against a private person.

Section 3 of the Act requires primary and secondary legislation to be given effect in a way which is compatible with the Convention insofar as this is possible. If the legislation cannot be interpreted in a manner which is compatible, this does not affect its validity, continuing operation or enforcement. In such a situation, section 4 of the Act allows a court to make a declaration of incompatibility which has no direct effect on the legislation nor any practical consequences for the case in which it is made; it allows Parliament to take remedial action without being obliged to do so.


Since its entry into force, the Human Rights Act 1998 has been the focus of intense criticism. It is blamed for decisions which are seen as privileging the rights of criminals and terrorists. In particular, cases where the deportation of criminals has been prevented on the basis of the risk posed to their human rights in the country to which they are to be sent has led to calls by politicians to "rebalance" the Act in favour of national security. In July 2006, the Home Office published a report calling for the rights of law-abiding citizens to take precedence over those of criminals.[11] Senior politicians and the media have heavily criticised this aspect and the lenient treatment of criminals which the Act is said to encourage.[12] The Act has also been seen as hampering effective counter-terrorism action. The 2006 Afghan hijackers case in which 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[13] and by both opposition and government politicians.[14] Tony Blair himself challenged the value of the Convention and the Act in the wake of news that a large number of foreign prisoners were released without being considered for deportation.[15]

Likewise, the Act has been criticised by judges on the basis that it does not incorporate all the rights in the Convention into domestic law. Legal commentators have also pointed out that the Convention is not a modern human rights instrument and was drafted in the 1940s as a response to specific historical circumstances. The values which it embodies are said to be those of a different generation and omits in particular children's rights, information rights and socio-economic rights. Senior judges have deplored the slavish obedience of ECHR decisions by domestic courts, calling for a more critical approach.[16]

Proposed replacement by a Bill of Rights

After Learco Chindamo, the Italian national convicted of the murder of headteacher Philip Lawrence in 1996, could not be deported to Italy after his release from prison, Conservative opposition leader David Cameron called for the repeal of the Act and its replacement by a "British Bill of Rights".[17] In July 2007, Prime Minister Gordon Brown published a green paper exploring the possibility of a Bill of Rights as part of a programme of constitutional reform.[18] In March 2009, a consultation process was launched with the publication of a Ministry of Justice green paper setting out preliminary proposals for a "Bill of Rights and Responsibilities".[19] The consultation was not completed before the 2010 general election.

Following the election, the Conservative – Liberal Democrat coalition agreement provided for the establishment of a Commission to investigate the creation of a Bill of Rights which incorporates and builds on the Convention and also protects and extends British liberties. The Commission was set up in March 2011 in the wake of Parliament's decision not to grant prisoners the right to vote despite the European Court of Human Rights' decision in Hirst v United Kingdom (No 2).[20] The nine-member Commission reported back in December 2012 that it had been unable to reach a consensus, with Lord Faulks and Jonathan Fisher, the two Conservative members, in favour of withdrawal from the Convention, while Philippe Sands, a Liberal Democrat adviser, and Baroness Kennedy, a Labour peer, opposed the introduction of a bill on the basis that it could be used to remove the United Kingdom from the European Court of Human Rights.[21] The Commission did agree however that no action should be taken until after the Scottish independence referendum, at which point a constitution convention should be held.[21]

Prior to the Conservative Party conference in September 2013, David Cameron hinted that he would prepared to withdraw the United Kingdom from the European Court of Human Rights.[22] This was followed by a speech in the conference by Home Secretary Theresa May in which she promised that the Conservative Party would, if re-elected in the next election, withdraw from the Court and repeal the Human Rights Act if necessary to "fix" Britain's human rights laws.[23] This followed a similar pledge by Justice Secretary Chris Grayling in March 2013.[24]

Convention rights in domestic law

Right to life

Main article: Right to life

The common law ensures the protection of the right to life and that no person is deprived of life intentionally. This is achieved primarily through the criminal law and 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 those killed by the wrongdoing of others to recover damages. Capital punishment had by 1998 been abolished in respect of all offences. Under the Coroners Act 1988 there is a duty in certain circumstances for deaths to be investigated by a coroner.

The law also attaches importance to the preservation of life: aiding and abetting a suicide is a criminal offence under 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 their quality of life in the event that treatment is continued. The Abortion Act 1967 permits the termination of a pregnancy under certain conditions and the Human Fertilisation and Embryology Act 1990 requires the storage of embryos to be licensed.

There is also an obligation on the state to prevent destitution and neglect by providing relief to persons who may otherwise starve to death.[25]

Freedom of thought, conscience and religion

The common law required punishment for "erroneous opinions concerning rites or modes of worship" to be provided for in legislation before it could be applied.[26] There were a number of such laws in the seventeenth and eighteenth centuries, including the Corporation Act 1661 requiring holders of civic office to be members of the Church of England and the Test Act 1673 requiring holders of military or civil functions to take the oaths of supremacy and allegiance and subscribe to a declaration against transubstantiation. Both Acts were repealed by the Roman Catholic Relief Act 1829 which admitted Catholics into the legal profession and permitted Catholic schools and places of worship. Jews were allowed to enter Parliament under the Jews Relief Act 1858. The Succession to the Crown Act 2013 amended the Act of Settlement 1701 to remove the exclusion from the line of succession of those who married Catholics.[27] However, it remains the case that the Sovereign must be a member of the Church of England.

Unlike the Church of Scotland and Church of Wales, the Church of England is the established church in England and enjoys certain privileges and rights in law. However, the promotion of anti-Christian views is no longer illegal and the law places no formal restrictions on the freedom of worship. There is no formal legal definition of religion and courts generally abstain from deciding issues of religious doctrine. The common law offences of blasphemy and blasphemous libel were abolished by the Criminal Justice and Immigration Act 2008. A new offence of incitement to religious hatred was created by the Racial and Religious Hatred Act 2006 and discrimination on the grounds of religion is regulated by the Employment Equality (Religion or Belief) Regulations 2003.

The Military Service Act 1916 and the National Service (Armed Forces) Act 1939 both provided for the possibility of exemption from military service on the basis of conscientious objection, although the House of Lords has held that there would be no breach of human rights if such a possibility was not provided for.[28]

Freedom of expression

Main article: Freedom of expression

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.[29] The right to freedom of expression has traditionally been considered as residual in character but certain types of speech are protected in positive terms. This is the case of debates in Parliament which are protected by parliamentary privilege, media reporting on parliamentary proceedings is covered by absolute privilege, while reports of court proceedings are protected by qualified privilege so long as they are fair, accurate and not published with malice.

The right of freedom of expression can be restricted where justified in the public interest, as is the case with the law of defamation, the offence of contempt of court, the law of obscenity and indecency, the regulation of mass media and protection of national security. Breach of confidence may be invoked before a court to obtain an injunction preventing the disclosure of confidential information.

Freedom of assembly and association

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 everyone to meet and assemble with his fellows to discuss their affairs and to promote their views".[30] It has traditionally been regarded as a residual right which individuals are free to exercise so long as the law does not preclude them from doing so.[31] According to Dicey, "at no time has there in England been any proclamation of the right to liberty of thought or to freedom of speech, [...] it can hardly be said that our constitution knows of such a thing as any specific right of public meeting". There are no common law rights to hold meetings on public land or in public buildings and the owners of quasi-public spaces such as shopping centres may exclude members of the public. Peaceful meetings may be held on the highway so long as they do not restrict access by other road users.[32]

The exercise of the right to free assembly is restricted by the common law as well as legislation. There is a common law duty to protect the Queen's peace and the power to detain persons who commit breach of the peace. The Public Order Act 1986 provides for the offences of riot, violent disorder, affray and causing harassment, alarm or distress, all of which may be committed by participants in an assembly. In addition, the Public Order Act 1936 outlaws the wearing of political uniforms at a public meeting when they suggest an association with a political object. The Criminal Justice and Public Order Act 1994 gives the police powers in relation to trespassers on private land. There is now a requirement under the Serious Organised Crime and Police Act 2005 to notify the Commissioner of Police of the Metropolis of an intention to demonstrate in Parliament Square and the Commissioner may impose such conditions as they see fit, including the place, time and number of participants.

As with the right of freedom of assembly, there has not traditionally been positive protection of the right of freedom of association. The common law has recognised the autonomy of organisations in deciding their membership and legislation has not placed any general controls on the exercise of the right of association. The right is generally reflected in the principle of freedom of contract and the relative ease by which companies and trusts can be set up. The right is most regulated in the area of labour relations including the right to join a trade union which achieved statutory recognition in the Industrial Relations Act 1971, the right not to be dismissed or refused employment on the basis of non-membership under the Trade Union and Labour Relations (Consolidation) Act 1992 and the right to claim unfair dismissal on the basis of trade union activity. 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 to strike was acknowledged for the first time in March 2011 by the Court of Appeal.[33] The right not to be unjustly excluded from the exercise of a trade or profession has been recognised by the courts.[34]

The right of freedom of association can be restricted on grounds of public order and national security; the Public Order Act 1936 prohibits the control or management of quasi-military associations and the Terrorism Act 2000 makes it an offence to be a member of a proscribed organisation.

Right to respect for privacy and the home

There is no general right to privacy in English law. Attempts to establish such a right in Kaye v Robertson and Wainwright v Home Office were rejected on the basis that it could only be done by Parliament. The creation of a tort of infringement of privacy had been recommended by Sir David Calcutt in his Review of Press Self-Regulation published in 1993,[35] but no action was taken. Instead, a patchwork of different torts combine to protect certain aspects of privacy, such as breach of confidence and misuse of private information. In Campbell v Mirror Group Newspapers Ltd, the House of Lords confirmed that a person will be subject to a duty of confidence if they receive information in circumstances where there is a reasonable expectation of privacy and where there is no justification for interference with that right to privacy. This was followed by Douglas v Hello! Ltd where a magazine was successfully sued for publishing unauthorised photographs of a celebrity wedding.

The Data Protection Act 1998 protects certain personal data which must be processed in accordance with a number of principles and gives persons a right of access to data which concerns them. Legal privilege protects communications with lawyers for the purposes of giving or obtaining legal advice and in the context of actual or contemplated litigation.

The right to freedom from interference with personal property is well-recognised principle reflected in the maxim "an Englishman's home is his castle."[36] In Entick v Carrington, Lord Camden famously asserted that seizure and retention of property will be unlawful unless justified by law. It is an offence to use violence to obtain unauthorised access to a property under the Criminal Law Act 1977 and the Protection from Eviction Act 1977. Applications for search warrants must comply with the procedure in the Police and Criminal Evidence Act 1984 and police surveillance is covered in the Regulation of Investigatory Powers Act 2000. Surveillance by the security and intelligence services is provided for in the Security Service Act 1989 and the Intelligence Services Act 1994.

The right to respect for the home relates only to an individual's existing home and there is no right to acquire a home.

Right to marry and family life

There is no general right to marry.[37] The necessary formalities in the Marriage Act 1949 must be observed if the marriage is to be valid and parties who are less than 18 years of age must obtain consent under the Children Act 1989. The Civil Partnership Act 2004 introduced the concept of civil partnerships and the Marriage (Same Sex Couples) Act 2013 provides for same-sex marriage.[38] The right to obtain a divorce is contained in the Matrimonial Causes Act 1973. The Gender Recognition Act 2004 allows transsexuals to change their legal gender.

The right to respect for family life, for which there is no general right at common law, is qualified by the broad principle that the welfare of the child is paramount and parental rights must take second place. In Gillick v West Norfolk Area Health Authority, Lord Scarman stated that "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", while Lord Fraser said that "parental rights to control a child do not exist for the benefit of the parent".[39] 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. Adoption is regulated by the Adoption and Children Act 2002.

Local authorities have a duty to act in a way to facilitate the right to family life, for example in providing travel arrangements for the elderly under the Health Services and Public Health Act 1968. 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. 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 thus far been willing to enforce this duty.

Prohibition of torture or inhuman or degrading treatment

The common law recognises that every person's body is "inviolate".[40] Interference will constitute the offence of common assault and the tort of battery. Under the criminal law, an individual cannot consent to actual bodily harm and the House of Lords held in R v Brown that acts of sado-masochism committed in private between consenting adults did not give the author of the harm a valid defence in respect of his acts. The Children Act 2004 removed the defence of reasonable chastissement in respect of acts committed against children and corporal punishment in schools was outlawed in the Education Act 1996.

The Criminal Justice Act 1988 prohibits torture carried out by public officials in the performance of their duties and evidence obtained by torture is excluded by the common law. The Bill of Rights 1689 outlawed cruel and unusual punishment and provided that an action for damages could be brought by victims.

The Police and Criminal Evidence Act 1984 allows police to carry out "intimate searches" of suspects in custody without the person's consent.

Right to enjoyment of possessions

Main article: Right to property

Protection against the arbitrary deprivation of property was recognised in the Magna Carta and is of key importance in the common law. Protection of the right to own and enjoy property is found in the offence of theft, by intellectual property laws and by the principle that there can be no taxation except that which is authorised by Parliament. The right to property is qualified by compulsory purchase laws.

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.

Freedom from slavery and forced labour

Main article: Slavery at common law

Slavery was abolished throughout much of the British Empire by the Slavery Abolition Act 1833 but as early as 1706 the common law had recognised that as soon as a slave came to England, he became free.[41] The courts did not recognise contracts which were equivalent to slavery or servitude.

The courts have been reluctant to force individuals to work and have declined to enforce contracts of service. Forced labour is however permitted in certain limited circumstances: the Crown can theoretically compel persons to undertake naval service and prisoners can be forced to work whilst serving their sentences.

The Supreme Court considered the forced labour prohibition in Caitlin Reilly and Jamieson Wilson v Secretary of State for Work and Pensions, where it ruled that the Department for Work and Pensions' workfare policy under which the unemployed work in return for their benefit payments were not forced labour but were nevertheless legally flawed.[42]

Right to liberty

Main article: Right to liberty

As provided for in the Magna Carta, "no freeman shall be taken, imprisoned [...] except by the lawful judgment of his peers and by the law of the land." The right is protected in three principal ways: the writ of habeas corpus requires a person under arrest to be brought before a judge or into court, the tort of false imprisonment and the offence of kidnapping. 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 under the Police and Criminal Evidence Act 1984. The police have no general power to detain a person for questioning without making an arrest unless this is for the purpose of the exercise of another police power such as the use of a search warrant. Arrests without a warrant are possible if the person is committing or about to commit an offence and the arresting officer has reasonable grounds to believe that arrest is necessary in order to ascertain the person's details, to prevent them from causing injury, damage or further offences, to protect a child or other vulnerable person, to allow prompt and effective investigation of the offence or the person's conduct or to prevent the investigation being hindered by the person's disappearance.

The police also have stop and search powers which they can use if they have reasonable grounds to believe that they will find stolen or prohibited articles or controlled drugs. Under the Criminal Justice and Public Order Act 1994, a senior police officer can authorise 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 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. A person may be detained without charge for up to 24 hours, which can be extended for a further 12 hours by a senior officer in the case of a serious arrestable offence and further extended by a magistrates' court up to a total of 60 hours in respect of indictable offences. Suspected terrorists may be detained for up to 48 hours without charge and immigrants and asylum-seekers may be detained for examination by immigration officers for an unlimited period.

Certain other categories of person may also be detained, such as persons in need of care and attention under the National Assistance Act 1948, children in the care of a local authority in secure accommodation, those suffering from infectious diseases under the Public Health (Control of Diseases) Act 1984 and those detained by British armed forces abroad.

The courts have powers to sentence offenders and deprive them of their liberty, as well as detain mental patients under the provisions of the Mental Health Act 1983. They may also order the payment of compensation to persons who have been unlawfully detained and the Home Secretary may award payments to victims of miscarriages of justice.

Rights of fair trial

Main article: Right to a fair trial

Although the common law provides no explicit statement of rights in a legal process, a number of principles combine to guarantee an individual a certain level of protection by law. These are often known as the rules of natural justice and comprise the principles nemo iudex in causa sua and audi alteram partem. A fair hearing implies that each party has the opportunity to present their own case to an impartial tribunal. Courts must generally sit in public and decisions may be challenged on the grounds of actual or apparent bias. Although judges are under a common law duty to give reasons for their decisions, there is no such rule for non-judicial decision-makers.

Certain specific rights apply in criminal cases. Persons in custody have the right to consult a solicitor by virtue of the Police and Criminal Evidence Act 1984 and the Access to Justice Act 1999 allows an individual to request confidential and free legal advice. The prosecution is under a common law duty to disclose all relevant evidence including that which may assist the defendant. The accused also benefits from a limited right to silence and the privilege against self-incrimination. Confessions are admissible as evidence under certain conditions laid down in the Police and Criminal Evidence Act 1984. The accused additionally benefits from a presumption of innocence. In discharging the burden of proof, the onus is on the prosecution as established in Woolmington v DPP. For example, in R v Wang it was held that it was never permissible for a judge to direct a jury to find a defendant guilty. There is also a right to jury trial, the accused should be able to follow proceedings and they have a right to be present during proceedings. The application of the double jeopardy rule was limited by the Criminal Justice Act 2003.[43]

Courts have jurisdiction to prevent abuses of process if it would be unfair to try a defendant or a fair trial would not be possible.

Freedom from discrimination

The common law has not traditionally provided effective protection against discrimination, refusing to find that slavery in the colonies was contrary to public policy and not interpreting the word "person" to include women. Due to the inadequacies of the common law in this area, Parliament enacted the Race Relations Act 1965 and Race Relations Act 1968. The Sex Discrimination Act 1975 was the first legislation to protect against discrimination on the grounds of sex or marital status, while dismissal for pregnancy-related reasons is qualified as automatically unfair dismissal under the Employment Rights Act 1996. The principle of equal pay was brought in under the Equal Pay Act 1970. Racial discrimination was prohibited by the Race Relations Act 1976 and disability discrimination by the Disability Discrimination Act 1995. Discrimination on the grounds of religion and belief in the workplace and tertiary education was first regulated by the Employment Equality (Religion or Belief) Regulations 2003, sexual orientation discrimination in the workplace by the Employment Equality (Sexual Orientation) Regulations 2003 and age discrimination in employment by the Employment Equality (Age) Regulations 2006.

Much of this legislation was consolidated into the Equality Act 2010, the bulk of which entered into force in October 2010,[44] which also introduces an "equality duty" requiring public bodies to have due regard to the need to eliminate discrimination, to advance equality of opportunity and to foster good relations between people.[45] It also imposes a duty on public bodies to publish information about compliance with the equality duty and to set equality objectives.[45] In addition, the Act clarifies existing legislation and simplifies the definition of direct discrimination, extends the definitions of indirect discrimination and harassment, regulates pay secrecy clauses in employment contracts and the use of health questionnaires by employers.[46] It also gives employment tribunals new powers to make recommendations to employers.[46]

Electoral rights

The Representation of the People Acts 1983 and 2000 confer the franchise on British subjects and citizens of the Commonwealth and Ireland who are resident in the UK. In addition, nationals of other 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. Certain persons are excluded from participation including peers, aliens, infants, persons of unsound mind, holders of judicial office, civil servants, members of the regular armed forces or police, members of any non-Commonwealth legislature, members of various commissions, boards and tribunals, persons imprisoned for more than one year, bankrupts and persons convicted of corrupt or illegal election practices. The restriction on the participation of clergy was removed by the House of Commons (Removal of Clergy Disqualification) Act 2001.

The Political Parties, Elections and Referendums Act 2000 deals with the registration of political parties, while electoral boundaries are determined by four Boundary Committees established under the Parliamentary Constituencies Act 1986. Electoral campaigns and electoral publicity, including expenditure rules per candidate, are regulated by the Political Parties, Elections and Referendums Act 2000.

Rights conferred by European Union law

Fundamental rights form an integral part of European Union law. As such, the principle of primacy of European Union law requires that any action taken by its member states must comply with the requirements of EU law as to the protection of fundamental rights.[47][48] In addition, the Charter of Fundamental Rights of the European Union, which has legal effect equivalent to the Treaties following the entry into force of the Treaty of Lisbon,[49] is applicable to Member States when "they are implementing Union law".[50] The Charter includes a number of rights not provided for in the Convention including the right of access to healthcare, the right of collective bargaining and action, the right to freedom of the arts and sciences, the right to education and the right of access to a free placement service.[51]

The United Kingdom sought to obtain a partial opt-out from the application of the Charter with the addition of Protocol 30 which affirms that the European Court of Justice does not have the jurisdiction to state a breach of the Charter by national laws, regulations or administrative provisions, practices or action, and that nothing in Title IV of the Charter concerning employment rights creates "justiciable rights" applicable to the United Kingdom unless those rights exist already in its law.[52] However, the Court of Justice held in December 2011 that Protocol 30 does not operate to exempt the United Kingdom from ensuring compliance with the Charter's provisions or from preventing a national court from doing so.[53][54] The extent to which Member States are bound by the Charter was highlighted in a judgment of the European Court of Justice from February 2013 which held that compliance is required where national legislation falls within the scope of European Union law.[55][56]

Other rights are conferred on UK nationals as citizens of the European Union, notably the right not to be discriminated against on grounds of nationality in an area within the scope of European Union law, the right to move and reside within the EU, the right to vote and stand for election in European and municipal elections, the right to diplomatic protection, the right to petition the European Parliament and the right to apply to the European Ombudsman.[57] To these rights can be added the "four freedoms" of the European single market which include the right of free movement between Member States, the right to provide services in another Member State, the right to move capital between States and the right 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.

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. However, as the UK is a dualist state, treaties and agreements ratified by the government have no effect until and unless incorporated into domestic law.[58] The provisions of unincorporated treaties can have nevertheless an impact on domestic law in a certain number of situations including the interpretation of legislation, the consideration of public policy and the assessment of the legality of the exercise of administrative discretion. In particular, there is a presumption that Parliament does not intend to legislate in a manner contrary to international agreements which have been ratified by the United Kingdom but not incorporated into domestic law. This presumption is capable of rebuttal by reference to Hansard in accordance with the principle established in Pepper v Hart.

International human rights treaties and the UK
United Nations[59] Ratified Incorporated Council of Europe[60] Ratified Incorporated
Convention on the Elimination of All Forms of Racial Discrimination 7 March 1969[61] - European Convention on Human Rights 8 March 1951[62] -
International Covenant on Civil and Political Rights 20 May 1976[63] - Protocol 1 (ECHR) 3 November 1952[64] -
First Optional Protocol (ICCPR) No[65] - Protocol 2 (ECHR) 6 May 1963[66] -
Second Optional Protocol (ICCPR) 10 December 1999[67] - Protocol 6 (ECHR) 20 May 1999[68] -
International Covenant on Economic, Social and Cultural Rights 20 May 1976[69] - Protocol 8 (ECHR) 21 April 1986[70] -
Convention on the Elimination of All Forms of Discrimination Against Women 7 April 1986[71] - Protocol 10 (ECHR) 9 March 1993[72] -
Optional Protocol (CEDAW) Accession on 17 December 2004[73] - Protocol 11 (ECHR) 9 December 1994[74] -
United Nations Convention Against Torture 8 December 1988[75] - Protocol 13 (ECHR) 10 October 2003[76] -
Optional Protocol (CAT) 10 December 2003[77] - Protocol 14 (ECHR) 28 January 2005[78] -
Convention on the Rights of the Child 16 December 1991[79] - European Social Charter 11 July 1962[80] -
Optional Protocol on the Involvement of Children in Armed Conflict (CRC) 24 June 2003[81] - Revised European Social Charter Signed on 7 November 1997[82] -
Optional Protocol on the sale of children, child prostitution and child pornography (CRC-OP-SC) 20 February 2009[83] - European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 24 June 1988[84] -
Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families No[85] - European Charter for Regional or Minority Languages 27 March 2001[86] -
Convention on the Rights of Persons with Disabilities 8 June 2009[87] - Framework Convention for the Protection of National Minorities 15 January 1998[88] -
Optional Protocol (CRPD) 7 August 2009[89] - Convention on Action against Trafficking in Human Beings 17 December 2008[90] -

Specific issues

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. In Northern Ireland, the government curtailed the civil liberties of all those, mainly from the Catholic nationalist minority, who were interned without trial, and violated the human rights of some. The Ministry of Defence stated "moderate physical pressure" was applied to the men. The European Court of Human Rights ruled that the techniques used, including sleep deprivation, hooding, stress postures, subjection to "white noise" and deprivation of food and drink, constituted "cruel and inhuman treatment", but fell short of torture in a landmark 1978 case.[91]

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 Identity Cards Act 2006 might contravene Article 8 of the European Convention (the right to respect for private life) and Article 14 (the right to non-discrimination).[92]


Main article: 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.

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 into 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.[93] 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.[94][95][96]

Cases involving the UK before the European Court of Human Rights

By the end of 2010, the European Court of Human Rights had, in 271 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."[97]

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 (Sutherland, 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 rights organisations

Accredited institutions

National Human Rights Institutions in the UK== There are three national human rights institutions in the UK, each with specific jurisdiction and functions. All three are accredited with 'A' status by the International Co-ordinating Committee of NHRIs, and all participate in the European Group of NHRIs, in both cases sharing one (United Kingdom) vote.

  • The first such body to be created was the Northern Ireland Human Rights Commission (NIHRC, was set up in 1999, under the Northern Ireland Act 1998 which implemented elements of the Belfast (Good Friday) Agreement; its powers were strengthened by the Justice and Security (Northern Ireland) Act 2007. The Commission is mandated to promote and protect human rights in Northern Ireland through advising on legislation and policy, providing legal assistance to individuals, intervening in litigation, conducting litigation in its own name, publications, research, investigations, monitoring compliance with international standards, and education and training.
  • The Equality and Human Rights Commission (EHRC, deals with anti-discrimination and equality issues in England, Scotland and Wales, and with human rights issues in England and Wales, and certain human rights issues in Scotland (those not devolved to the Scottish Parliament).
  • The Scottish Human Rights Commission (SHRC, was established by The Scottish Commission for Human Rights Act 2006 (Scottish Parliament), and became fully operational on 10 December 2008, Human Rights Day, and the 60th Anniversary of the Universal Declaration of Human Rights. The Commission is mandated to promote and protect human rights in Scotland in relation to civil, political, economic, social and cultural rights, through publications, research, inquiries, advice, monitoring, legal intervention and education and training.

Other organisations and bodies




External links

  • Publications by Parliament's Joint Committee on Human Rights
  • U.S. Department of State publication: 2004 UK Country Report on Human Rights Practices
  • U.S. Department of State publications: UK Country Reports on Human Rights Practices since 1996
  • European Court of Human Rights Judgements
  • Amnesty International UK site
  • Guardian Special Report: Human Rights in the UK
  • Censorship in the UK - IFEX
  • Human Rights Act 1998
  • Amnesty International UK trafficking/forced prostitution
  • Universal Periodic Review, April 10, 2008
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