The Three Pillars of Liberty

Political Rights and Freedoms in the United Kingdom

Francesca Klug, Keir Starmer, Stuart Weir

• Publisher: Routledge
• Year: 2003
• eBook ISBN: 9781134864188
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

In this landmark study, a thorough audit of British compliance with international human rights standards is carried out. The book identifies 42 violations and 22 near-violationsor causes for concern. It provides an up-to-date description of law and practice withrespect to freedom of information; freedom of expression; freedom of assembly and publicprotest; freedom of association and trade unionism; state surveillance; the right to lifeand liberty; and the right to vote and stand in elections.

This study measures political freedom in the United Kingdom specifically against aunique Human Rights Index, specially constructed from international human rightslaws and jurisprudence by the authors. The Index is an important new tool formonitoring human rights around the world. It is already being used to monitor newlegislation in the UK.

The Three Pillars of Liberty is the first-ever analysis of both the political and legalsystems for securing political freedom in the UK as a whole. It is the most rigorous andsystematic review of those systems yet published—and finds them wanting. It strikes atthe heart of the historic traditions of government and the rule of law in this country.This book will be essential reading for all those interested in their rights and the rightsof others.

PART 1
Introduction

1 The British Tradition of Constitutional Rights

Political freedom in the United Kingdom

Citizens of the United Kingdom believe they are among the freest people in the world. The idea that this country has a unique propensity to individual liberties, going back to the ancient resistance of the Anglo-Saxons to the ‘Norman yoke’ and the Magna Carta, is buried deep in the national psyche. For example, on its 750th anniversary in 1956, Lord Denning celebrated Magna Carta as ‘the foundation of the freedom of the individual against the arbitrary authority of the despot’. More recently, Mrs Margaret (now Lady) Thatcher lyrically described how the belief in freedom has been jealously guarded ‘on this island of ours’:

‘That was always our glory—not our wealth, although that was great; not our Empire— although that was the greatest ever seen; but our constant commitment to the fundamental liberties which alone allow the human spirit to grow and a free nation to be governed with tolerance, decency and compassion.’

(Speech in Birmingham, 19 April 1979)

Inherent in this belief is the idea that the country’s political and legal institutions are perfectly suited to protecting individual liberties and require no fundamental change. That while the United Kingdom has ratified all the major international and regional human rights instruments, none are really needed by the British people. In 1995, Lord Donaldson, formerly Master of the Rolls, recalled that, as a judge, he had been referred to the European Convention on Human Rights from time to time, but could not remember it ever being suggested that there was ‘any inconsistency whatsoever’ between the common law and the Convention (HL Deb, 25 January 1995, c1154).

But this belief also inspires a strong popular attachment to ‘rights’, which is one of the sturdiest elements in the reactive civil society of the United Kingdom. Indeed, for two-thirds of the population, ‘living in a free country’ is one of the two most important aspects of democracy (ICM 1994). Civil society in Britain is notable for the variety of expert and skilful organisations committed to human rights and democracy. In July 1995, the UN Human Rights Committee reported that the evidence from ‘a wide range’ of such bodies during its hearings on the UK human rights record ‘not only greatly assisted the Committee, but [was] also a tribute to the democratic nature of UK society’ (CCPR/C/798/Add. 55, para. 3).

Yet the British tradition of ancient ‘constitutional rights’ is a double-edged legacy. This tradition conflates ideas of ‘strong’ government and public order with civil liberties, and the first two are usually paramount in the minds of the country’s rulers. Thus, citizens may deploy the claim to ‘rights’ against state power on their own behalf, or that of oppressed or excluded groups. But the idea may equally well be used by those in power against threats from below or outside. The defence of liberty—uniquely ‘English’ or ‘British’—has frequently served as a defence against democracy and protest. It is further employed to inhibit scrutiny of the traditional arrangements through which the state protects human rights. Any idea that these arrangements might benefit from thoroughgoing review is likely to provoke unease or accusations of disloyalty; any criticism from outside—as, for example, in the European Court’s judgment in 1995 on the deaths of three IRA terrorists in Gibraltar—can ignite passionate cries of rejection, not least from another symbol of English tradition, Number 10 Downing Street.

The purpose of this book is to provide that thoroughgoing review. There is ample evidence from the Rowntree Reform Trust’s ‘State of the Nation’ opinion polls of the depth of public concern about the erosion of democracy and civil liberties in this country (Rowntree Reform Trust 1991, 1995). This book tests how thoroughly political rights and freedoms are protected in law and practice in the United Kingdom. The intention is to do so in a systematic and objective way, which is described in detail in this and the following chapter.

Ideas of individual freedom and political rights in Britain

This country’s contribution to the idea of individual rights and freedoms has been a distinguished one. Magna Carta is a universally significant document as it represents one of the first practical challenges to the idea of absolute rule. From it derive the concepts of natural justice and trial by jury which characterise the English legal system to this day. The 1689 Bill of Rights, the first modern document of that name, set out certain rights and liberties which English subjects could henceforth claim against the king. Prohibitions against ‘excessive bail or fines’ and ‘cruel and unusual punishment’, which are common to modern human rights instruments, stem from this Bill. Neither is of course a human rights document in the modern sense. Their main purpose was to share power between monarch and the propertied classes. They did not establish a comprehensive set of rights for the people as a whole and they reinforced existing inequalities and discriminations. For example, Magna Carta singled out Jews for discriminatory treatment; the Bill of Rights secured special rights for Protestants (who alone were allowed to bear arms).

It was not until the Enlightenment that the concept of human rights in a more modern sense began to take root. This was a European movement, in which the English philosopher, John Locke (1632–1704), played a significant part. Locke’s theory of a social contract between the rulers and ruled remains influential to this day. He argued that people gave up their natural freedoms in return for protection by their ruler of their life, liberty and property (Locke 1963). This was a persuasive early argument for the now established view that one of the first duties of the state is to protect the rights and freedoms of its citizens. Ideas of individual rights and equality inspired the French Declaration of the Rights of Man (1789) and the American Bill of Rights (1791). But the French Revolution and the European wars which followed created a divide between the English and European traditions. Thomas Paine, the English radical who played a part in both the American and French Revolutions, published a pamphlet, The Rights of Man, in 1791, arguing the case for democracy and the ideas of the French Revolution (Paine 1791). His pamphlet became a bestseller, but the British government indicted Paine for seditious libel; while Paine undoubtedly sowed the idea of natural, or human, rights among the population at large, the authorities met demands for popular sovereignty and a Bill of Rights with severe repression.

Paine’s contemporary, Edmund Burke (1729–1797) was in fact to have far more influence on British political thought. Burke, a Whig politician, ridiculed ideas of ‘natural rights’ as meaningless abstractions, as Jeremy Bentham and the nineteenth century Utilitarians were also to do. Burke counterposed his own abstract vision of ordered progress in an organic society, in which rights and customs evolved naturally over time, and argued forcefully for a concept of representation by able and independent gentlemen in Parliament. It is not easy to over-estimate Burke’s continuing impact on British political life. He influenced the way in which nineteenth and early twentieth century Britain gradually accommodated the extension of the franchise. He is generally regarded as the father of modern conservatism in the UK, but the late Labour minister, Richard Crossman, once called him ‘not the philosopher of British conservatism, but of British political life from Right to Left’ (Arblaster 1984:225). Another enduring proponent for the British way was to follow—Professor A.V.Dicey (1835–1922), a constitutional theorist who argued that individual liberties were more effectively protected by parliamentary sovereignty, the unwritten constitution and the common law than by continental systems with their constitutional codes and catalogues of rights. Inherent in the British system, he maintained, was the unwritten assumption that every subject is free to do that which is not forbidden by law: what are generally known as ‘negative rights’. Precisely because rights were not written down, but were upheld by judicial rulings or the common law, it was actually more difficult for governments to take away or reduce the liberties of the people (Dicey 1885). Dicey’s arguments remain the rock on which is based the continuing adherence of governments in Britain to the long-established indigenous system of ‘negative’ rights, built into the common law, as opposed to the model of ‘positive’ rights, defined in entrenched Bills of Rights and constitutions and in international rights instruments.

The development of universal human rights

The end of the second world war marked a new era in the quest to develop and protect human rights. Until the 1930s, the way a country treated its inhabitants was (in the consistent tradition of international law) exclusively the affair of that country’s government. There was almost no scope for legitimate criticism, let alone intervention, from outside. The wholesale abuse, torture and slaughter of millions of citizens in Europe and the rest of the world by Nazi Germany and its allies stirred the conscience of the international community. The people who were murdered were singled out because of their religion, ethnic origin, political opinion, sexual orientation or disability. The doctrine of national sovereignty was morally discredited. It was recognised that states could no longer agree not to interfere in the internal affairs of countries where atrocities were taking place.

The League of Nations, the precursor of the UN, had drawn up narrowly defined treaties in an effort to protect minorities, mainly in eastern European countries. The failure of these treaties persuaded the United Nations that the broad protection of human rights should take its place among the founding principles in the UN Charter. It is from this decision that a set of universal standards for human rights came to be born. In 1948, the UN General Assembly agreed the Universal Declaration of Human Rights, which was intended to establish ‘a common standard of achievement for all peoples and all nations’. This common standard rested on empirical evidence of the barbarism which can and does break out in nation states. In human societies, it was recognised, the interests and views of rulers are always likely to differ to some degree or another from those of the ruled, and especially minorities. There was always the danger that states would resort to state or majority tyranny. States would still adopt their own laws. But these laws, in turn, ought to conform to agreed international standards on human rights and freedoms (Sieghart 1986:40).

At the time, the Universal Declaration seemed to be largely declaratory, but it has since acquired increasing legal significance. There remains plenty of room for neo Benthamite scepticism. The world may have established common standards for the protection of human rights; and even a new theoretical base for their protection. But all the instruments and covenants in the world have not protected millions of people from human rights abuse, torture and mass slaughter. International agencies, most obviously the UN itself, and individual states remain reluctant and often incompetent to intervene in the internal affairs of the most brutal states. The ‘promise’ of 1948 has not been fulfilled. But there now exists an evolving set of common standards which have been signed by nearly all the states in the world and against which their actions can be objectively judged. In particular, the UN International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights came into force in 1976 to develop the broad standards that the Universal Declaration established in greater detail and to turn them into enforceable rights. Two supervisory bodies—the UN Human Rights Committee and the UN Committee on Economic, Social and Cultural Rights—were established to monitor and encourage compliance with the Covenants. Other international and regional instruments have drawn on the Universal Declaration to create binding human rights.

The most significant regional instrument for the UK is the European Convention on Human Rights. This country was one of the 15 European states which, as founding members of the Council of Europe, resolved to take what they described as ‘the first steps for the collective enforcement’ of political and civil rights set out in the Universal Declaration when they signed the Convention in 1950. The Convention—which came into force in 1953—is often said to be alien to British political and legal traditions. Yet its Articles enshrine rights and freedoms which are part of a common European heritage and a former legal adviser to the Home Office was the principal drafter of key parts of the text (Lester 1993:1–3). But the revolutionary ideas of collective enforcement and the right of individual petition to independent outside bodies—the European Commission and Court of Human Rights—have undoubtedly proved unwelcome to British governments. The United Kingdom has refused to incorporate either the European Convention or the International Covenant on Civil and Political Rights into domestic law. (Of the 31 European nations which have now ratified the Convention, only four—the UK, Ireland, Poland and Norway—have refused to incorporate.) It was not until 1966 that the United Kingdom finally allowed British citizens to invoke the European Convention against their own government and courts, and they still have no right of individual petition to the UN Human Rights Committee, the enforcing authority of the International Covenant (see p. 58).

Thus modern Britain retains its own domestic arrangements for protecting and enforcing rights, yet now forms part of the European and international systems for protecting rights. It is a curious duality: aggrieved citizens may first of all seek to secure their rights in domestic courts, which follow a ‘non-positive’ approach; and if unsatisfied, may take the ‘positive’ road to the European Commission and Court in Strasbourg. The two systems never overlap. The Court regularly considers cases referred from the United Kingdom and has to date found 37 violations of the Convention (Table 3.1). In such cases, the government is obliged, if relevant, to change the domestic law. The government does not respond by introducing a new positive right, but simply deals with the specific problem identified by the court. In 1995, the UN Human Rights Committee, deprived of jurisdiction in individual British cases, unanimously concluded that the whole system for protecting and securing political and civil rights in the UK ‘does not ensure fully that an effective remedy is provided for all violations of the rights contained in the Covenant’ (27 July 1995: CCPR/C/79/Add. 55). This audit considers how far those arrangements do protect and secure political and civil rights—or more particularly ‘democratic rights’—in this country, and how effective the remedies are for individual citizens whose rights are violated.

The auditing tool—the Human Rights Index

To carry out this audit, we have developed a Human Rights Index, drawn from international and regional human rights instruments, such as the International Covenant and European Convention, and the interpretations given to them by supervisory bodies, like the UN Human Rights Committee and the European Commission and Court of Human Rights.

The Index is fully described in Chapter 2; it consists of an original set of criteria establishing the evolving international human rights standards for civil and political rights and freedoms. In that chapter, we also discuss the obvious difficulties of carrying out an audit of ‘negative’ arrangements for protecting rights using criteria drawn from a ‘positive’ model (see above). In general, however, we reject the idea that such instruments represent an ‘alien’ tradition. The United Kingdom contributed to the development of both the International Covenant and European Convention in the 1950s and both draw on ‘a common heritage of political traditions, ideals, freedoms and the rule of law’ (Lester 1993:1).

We start from the assumption that any democratic political system is capable of protecting human rights, according to the international standards set down in human rights instruments. Neither the International Covenant nor the European Convention prescribes a particular system to be adopted to protect human rights. Contracting states like the United Kingdom may employ their own arrangements for protecting and securing the rights that they set out. The two instruments do, however, require that these arrangements should be effective and lay down certain principles—for example, the right to an effective remedy for breaches of rights—which must be satisfied if a given political system is to protect the human rights of its citizens adequately. Nor are ‘positive’ continental or interna...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• List of Figures, Tables and Boxes
• Foreword
• Acknowledgements
• List of Abbreviations and Acronyms
• How to Use This Book
• Part 1: Introduction
• Part 2: The UK Framework for Protecting Rights
• Part 3: Political Rights and Freedoms— The Audit
• Part 4: The Balance Sheet
• Appendix 1: The Democratic Audit of the United Kingdom
• Appendix 2: The International Covenant On Civil and Political Rights and the Optional Protocol
• Appendix 3: The European Convention On Human Rights; and the First, Fourth, Sixth and Seventh Protocols
• Appendix 4: International Human Rights Instruments Used to Compile the Index
• Table of Cases
• Bibliography and Sources