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A Guide to UK Constitutional Law: Part II

The Rule of Law and Human Rights

Contents

Law and Justice   

Justice has two meanings:

  1. The procedure by which legal disputes are settled, the process of the law.
  2. The normative idea of the proper outcome to a case; some may believe that having gone through the process of law they did not get justice.

Justice is administered through the court system and by the judges.

The law is the set of formal rules by which society and the government operate. It has two main forms in the UK:

  1. Statute law passed by Parliament.
  2. Common law, the body of law built up over time  by the judges from particular case decisions.

The UK does not have a codified constitution and so has no constitutional court as in say the USA; therefore the UK does not have a separate system of constitutional law as in those countries. UK constitutional laws are ordinary Acts of Parliament and major cases decided by the ordinary judges. This is a part of the principle of the Rule of Law.

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The Rule of Law

The main principles of rule of law as stated by A.V. Dicey are:

  • Everyone is equal before the law, so there is no difference in the treatment by the law of different groups, such as ordinary citizens or members of the government, or racial groups or groups of different social standing;
  • No one can be punished except for clear breaches of the law
  • There is no set of laws above the ordinary courts; that is the UK does not have a separate system of constitutional laws as in the USA or elsewhere where there is a constitutional court and so in the UK the citizen’s personal freedoms are formulated and protected by ordinary law rather than by abstract constitutional declarations.

The main breaches of the principle in the UK:

1    Northern Ireland has a separate system of criminal courts, the 'Diplock courts' where defendants in terrorist cases do not have the right to trial by jury

2     The government can change the law to its own requirements through Parliament e.g. the 1989 Official Secrets Act blocked the defences used in cases that it lost, such as Spycatcher 1988 and Ponting 1985  

3    Retrospective law such as the War Crimes Act 1990, which makes actions unlawful in this country after they were committed

4    Discrimination in the courts e.g. People of a certain colour far more likely to receive custodial sentences

5    Unequal access to the law in civil cases. "The law like the Ritz is open to everyone" Lord Denning. Wealth buys greater access to the civil law e.g. libel cases.

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Bill of Rights and Rights in General     

Other links:

The new system of Rights following the Human Rights Act

How well are civil liberties protected in Britain?

What will be the constitutional and political consequences of the introduction of a Bill of Rights for Britain?  10thNovember 99

Human Rights Act  1998

Bill of Rights and Rights in General =

Human Rights links 

Statewatch monitoring the sate and civil liberties in the EU 

European Court of Human Rights

European Court of Human Rights (another link)

UN High Commissioner for Human Rights

US Dept of State report into Human Rights in the UK 1997

Amnesty International

Liberty

Human Rights Watch

Different types of rights: what do we mean by someone having a 'right'

  • Human or Natural. These are based on the idea of the categorical imperative (a term attributed to the German philosopher Kant); put simply it is the view that some things are self evident such as that people have a basic entitlement to life.
  • Constitutional. Rights can be set out in some document such as a written constitution as in the USA, or a charter such as the European Convention on Human Rights (set out in 1948)
  • Statutory. Most in the UK will have read many times on products ‘this does not effect your statutory rights’, which simply refers to rights laid down by Parliament; eg the Sale of Goods Act says that goods must be of merchantable quality i.e. they must do what they are purported to.
  • Residual. Those things we can do after the politicians have laid down limiting laws. It can be regarded as the area of freedom we are left with. This is the traditional pattern of rights in the UK prior to the introduction of the Human Rights Act in 2000.  Now, the system of rights has changed following the new Labour government’s decision to incorporate the European Convention into UK law.
  • Civil rights. The rights we have as a citizen of the state, such as the right to vote, to join political parties, say what we think, to protest.
  • Positive rights. The view that people have entitlements to things like health, education, personal fulfillment, and this creates an obligation on the government to make those things available.

Some preliminary ideas on the question of establishing rights:

1 Rights are seldom categorical but are qualified. My right to free speech must take into account your right to have fair representation, so we have libel laws. In the extreme case some groups may claim rights under the constitution that limit others’ e.g. civil rights in the USA in the 60s.

2 They can become anachronistic. Reform of the gun laws in the USA have come up against adherents to the constitutional right to ‘keep and bear arms’ designed to protect 18th century frontier folk...

...or the right to life may become a burden in the face of technical improvements in medicine.

3 They are abstract and need to be applied in specific cases; the constitutional statement of rights tends to be in abstract terms e.g. the right of free speech, and it is then up to the courts to apply them in precise cases.

4 Politicising the courts/judiciary. Setting out rights in a codified form gives more scope for groups to take legal action that will often involve the government, and so involve the courts more in politics.

The problems with residual freedoms in modern UK

 See Anthony lester's (QC) talk on the need for a Bill of Rights

1 The increasing encroachment of government by statute law, for example in the area industrial relations and employment rights.

The main piece of legislation relating to the rights of trade unions in the United Kingdom is the 1906 Trades Disputes Act. This gave trade unions the right to strike without fear of prosecution by employers. Before that act, the trade union could be sued for civil damages by the firm. The 1906 Act makes it lawful to take industrial action if it is "in furtherance of a trade dispute", i.e. as part of a campaign to improve pay and conditions. When the Conservatives came to power in 1979, they introduced three Acts, the 1980 and 1982 Employment Acts and the 1984 Trade Union act. The combined effect of these acts has been to greatly limit the scope for industrial action by redefining an industrial dispute, and making unlawful certain forms of action; for example the 1980 Act limits the numbers and possible places of pickets, the 1982 act excludes sympathetic action, political strikes, and the 1984 act gives employers the right to demand a ballot of trade union members before industrial action is started. The 1994 Criminal Justice and Public Order Act makes it possible to draw inferences from the silence in court of defendants, and reduces the rights of assembly.

2 Out of line with most other democracies that have a separate Bill of Rights.

In most other countries there is a separate Bill of Rights which sets out the citizen's rights eg free speech, religion, assembly, fair trial, freedom from unlawful arrest. But the existence of a Bill of Rights does not guarantee those rights any more than in a state without such a document.

3 It depends on the good will of governments. This is less satisfactory in an age when the public is more aware of rights and there is less confidence in the integrity of politicians, especially following cases such as Matrix-Churchill and the various miscarriages of justice.

Remedies available to the aggrieved citizen (before Human Rights Act 1998)

1     Representations to MPs.

- Some very successful campaigns have been conducted by back bench MPs such as e.g. Chris Mullen who raised the case of the Birmingham six and has become a champion for remedying injustices.

2    Campaigning:

- Rough Justice 

- Direct action such as the anti-Poll tax campaign

- The Stephen Lawrence campaign

The MacPherson inquiry into the killing of Stephen Lawrence was established  largely as a result of very effective campaigning by the Lawrence family and their supporters.

Main recommendations of the MacPherson report

Stephen Lawrence Website

Lawrence Inquiry coverage by BBC

Government response  

3     In cases of maladministration, the Parliamentary Commissioner, or Ombudsman. This looks into cases where individuals have suffered because of poor administration by Government departments or agencies, or have been refused access to Government information.

4 Legal redress.  Going to court. This only works if Parliament provides the Act in the first place for the judges to apply, and it was thought that until the UK had a Bill of Rights, there would not be insufficient legal remedies available.

Many of the legal remedies relating to individual grievances tend to favour the rich and famous e.g. the laws of libel such as Elton John winning large damages against the tabloid press.

Supporters of the Bill of Rights idea wanted more widespread rights such as: freedom of information, employment rights, and so on.

5   The European Convention on Human Rights

The UK is a signatory to this and since 1965 UK citizens can take grievances against public authorities to the Human Rights Commission in Strasbourg. But this was not part of UK law as such: (until the 1998 Act) the rulings could be ignored where national interest was claimed. The UK has been found in breach of the Convention more than any other signatory to it.

In 1979 the court ruled that the Government had been wrong to block publication in The Sunday Times of reports about children whose mothers had taken thalidomide during pregnancy.

Birching in the Isle of Man was ended in 1978 after a court ruling, and in 1982 the court ruled against corporal punishment in state schools.

May 1985: three women from Malawi, the Philippines and Sri Lanka successfully challenged immigration laws that denied their husbands automatic entry into Britain.

April 1988: the killer Jimmy Boyle won a claim that letters were unlawfully interfered with in jail.

October 1990: three sex offenders won a ruling forcing a review of the way life-sentence prisoners are released on license and then recalled.

1995: the court ruled that the shooting dead of three IRA bombers by the SAS in Gibraltar was a violation of their human rights under the convention.

February 1996: the court ruled that the Home Secretary should no longer have the power to detain indefinitely children convicted of murder.

June 97 Alison Halford, former senior police officer won her case in the European Court of Human Rights against her former employers (Merseyside Police Force) over invasion of privacy when they listened in on phone calls made from her from work to her solicitor as she was conducting her case for sex discrimination against them.

March 1999 The Commission ruled that the killers of Jamie Bulger had not had a fair trial by being tried in an adult court.

September 1999 The Court ruled that the UK government's ban on gays in the Armed forces was contrary to Article 8 of the European Convention.

December 16th, ECHR ruled that the killers of James Bulger had not had a fair trial as they had been tried in an adult court.

July 2000 ECHR declared 'Gross indecency' law contrary to the Convention

May 2001 ECHR Rules on 'shoot to kiil' cases in Northern Ireland (Finds against the British security forces)

April 2002 Woman loses 'right to die'  case

May 2002 UK ruled unlawful over parole terms

The procedure is more lengthy (5 years average). The most supported suggestion for a new system of rights was to incorporate the European Convention into British law, meaning that claimants could pursue their case in the British courts, and that British judges would have additional legal powers. This is the system that Jack Straw, Home Secretary, has introduced for the UK in the Human Rights Act and it came into force in 2000.

Some remedies have also been sought through the European Court of Justice under EU law principally the Treaty of Rome, e.g. the payment of winter fuel payments to women at 60 and men at 65 was ruled contrary to EU law.  At an earlier hearing the UK government was forced to bring the retirement ages of men and women into line.

Before the Human Rights Act was passed in 1998 and came into force in 2000 - these were some of the reasons for and against a 'Bill of Rights':

Reasons against incorporating the Convention into UK law

1 That we have managed well so far! (A complacent view, some would say, which does not accord with the facts. The British government has had more rulings against it in Strasbourg than any other European state, providing unfavourable international publicity.)

2 Bill of Rights are normally outlined in general terms eg 'the right to liberty, privacy, freedom of thought. So it is up to a court to interpret them. The danger of this is :

- more scope for judicial interpretation and so possible politicisation of judges.

3 The need for some form of adjudication as in the US Supreme Court. Who is to safeguard the system of rights from encroachment by subsequent laws. In the US Acts can be deemed unconstitutional. The UK has a sovereign parliament and so it is difficult to entrench (anchor) rights, where they involve an apparent conflict between courts and Parliament (what if an Act itself is judged in breach of the Bill of Rights).

        Following on from 3), the possible politicisation of judges, since many legal cases are likely to involve people with grievances against the government, and there will be more room for 'interpretation'.

4 The risk of anachronism

- Over time a right may become less defensible e.g. the right to keep and bear arms under the US constitution.

5 That Charters/Bills of rights as envisaged by reformers are out of character with the British system of government which is based on the empirical tradition rather than on the continental rational tradition. UK tends to evolve their system of government rather than the continental practice of drawing up a new constitution periodically. (France is on its 5th since the 18th century.)

- The alternative approach is to extend the ordinary statute laws relating to individual and group rights. Some see this as more flexible in response to changing conditions.

6 That adoption of the European Convention would subvert the basic principle of our parliamentary democracy in taking judges into policy issues, since a Bill of Rights is framed in much more general terms. (This in turn can be countered by the whole tradition of case law.) Michael Zander proposed that Parliamentary sovereignty could be preserved by the right to amend decisions subject to a two thirds majority in Parliament.

Reasons For Incorporation

1 Public concern about the present situation with greater amount of statute laws (See above about residual freedoms)

2    International criticism. In 1995 The UN Human Rights Committee criticised Britain for failing to protect political rights

3 It would educate the public about the nature of rights and by implication, responsibilities; this could encourage respect for the rule of law.

4 Some believe that the British courts are traditionally unsympathetic to minority interests. Lord Scarman suggested that a BoR would aid good race relations. It could be equally said to benefit relations towards gays, ramblers, single parents and so on.

Also Lord Scarman 1974, suggested that it would be a form of redress for the Catholic minority in Northern Ireland. He repeated this following his inquiry into the Brixton riots in the early 80s.

European Convention on Human Rights

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The New System of Rights

Home Office guide to the new Human Rights Act

Blunkett suspends Human Rights Act  provisions Nov 2001

Human rights law comes into force, BBC coverage First case questions judges' role see The Times Internet Edition Oct 3rd 2000

Human Rights Act  1998       European Court of Human Rights

What will be the constitutional and political consequences of the introduction of a Bill of Rights for Britain?

Challenge to Scottish parliament over Fox hunting Bill  March 2002

New Anti-terror law means suspension of some  clauses of Human Rights Act   December 2001

Government suffers its first defeat under new Human Rights law  December 2000

Murder cases in Scotland to be reviewed

Main provisions of the Human Rights Act (HRA)

The Human Rights Act 1998 changes fundamentally the system of individual rights in Britain. It means for the first time judges have the powers to apply the principles of the European Convention in British courts, rather than before, cases having to be taken to the European Commission on Human Rights in Strasbourg. It does this by incorporating  the 1951 European Convention on Human Rights into British law.

This is quite different from the traditional approach to rights in the UK which had been to provide specific protection within a general framework of residual freedoms; judges now have the power to interpret and apply general rather than very specific rights. Residual rights are those things we can do after the politicians have laid down limiting laws. It can be regarded as the area of freedom we are left with. This was the traditional pattern of rights in the UK prior to the introduction of the Human Rights Act in 2000. The main case against such residual rights was the ability and tendency of governments to encroach on that residual area. For example, the 1994 Criminal Justice and Public Order Act made it possible to draw inferences from the silence in court of defendants, and reduces the rights of assembly.

There is a possibility of conflict between judges and Parliament, since judges are going beyond merely interpreting the law; they can by implication comment on the wider implications of Acts of Parliament.

Judges are not able to stop the implementation of Acts as in Canada, as this was thought incompatible with Parliamentary Supremacy, but they will be able to strike down secondary legislation (statutory instruments) and they  will be able to declare existing Acts of Parliament incompatible with the convention; the government would then move to then change the law, but they would not have a statutory obligation to do so. This is similar to the New Zealand system.

There will be a fast track system of changing the law in Parliament so as to comply with court rulings.

If the Government refuses to change legislation, an individual will still be able to take the case to the European Court of Human Rights at Strasbourg.

All public authorities, such as the police and local authorities, will be legally bound to comply with the convention. If a court judges that they have done so, it may quash their decisions.

Ministers introducing legislation will have to make a declaration that the measures comply with the convention's central provisions.

Consequences

1    Ordinary citizens have more legal remedies for grievances in the British courts, rather than having to take their cases to Strasbourg; thus speeding up the process.

2   There is likely to be more public awareness of individual rights, through routes such as the extensive preparation by public authorities for the new law.

3    The UK is moving closer to a written constitution, that is one based more on separate formal rules rather than convention and common law.

4    Judges are being brought more into political arena as they are given more discretion. Interpreting the general provisions of the Convention gives more scope for judicial interpretation than very specific Parliamentary statutes.

5    Greater checks on the executive arm of government: new Bills must comply with the Convention and some areas  of ministerial powers are removed for example over parole for prisoners.  In December 2000 the British courts ruled that the role of the department of the Environment in making the final decisions over planning cases was inconsistent with the new Act.

6    The likelihood of a spate of class actions, that is actions brought on behalf of a particular group.

7    There is the possibility of a new judge-made law of privacy from Article 8 which could limit press freedom; to prevent this the government amended the Human Rights Bill:

Adding a requirement stating that:

courts dealing with privacy cases under Article 8 of the convention, which covers respect for private and family life, home and correspondence, must have particular regard to  freedom of expression which is protected under Article 10

that a court hearing a case involving journalistic, literary or artistic material must take into account the issue of public interest, including whether the newspaper has acted fairly and reasonably and abided by the PCC's code of practice

that injunctions preventing publication of a story should not be granted unless the respondent is present or represented, to stop people seeking late-night injunctions to ban stories without the newspaper being able to be represented.

 Limitations

1 The Act does not grant new rights as such, but rather the British public now has easier access to legal remedies.

2 The Act is not entrenched; in theory it could be altered by a future Parliament; Article 15 allows suspension of provisions in the Convention in the interests of national security; in December 2001 the Home Secretary suspended Article 5 of the Convention that outlaws detention without trial, as part of his counter terrorism Bill.

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What will be the constitutional and political consequences of the introduction of a Bill of Rights for Britain?

This is of course very topical as the UK has a new system since 2000: the Human Rights Act has been implemented.

The pre-HRA 1998 set up in Britain meant that rights were protected by a mix of some statutory, but mainly residual freedoms.

Statutory. Many in the UK have read many times on products ‘this does not effect your statutory rights’, which simply refers to rights laid down by Parliament; eg the Sale of Goods Act says that goods must be of merchantable quality ie they must do what they are purported to. Examples of more fundamental statutory rights are those such as the Equal Opportunity laws and Race Discrimination laws.

Residual. Those things we can do after the politicians have laid down limiting laws. It can be regarded as the area of freedom we are left with. This is the traditional pattern of rights in the UK; at the moment (1999) the whole system of rights is about to change following the new Labour government’s decision to incorporate the European Convention into UK law.

Main provisions

The Human Rights Act 1998 changed fundamentally the system of individual rights in Britain. It meant for the first time judges would have the powers to apply the principles of the European Convention in British courts, rather than before, where cases had to be taken to the European Commission on Human Rights in Strasbourg. It does this by incorporating  the 1951 European Convention on Human Rights into British law.

This is quite different from the traditional approach to rights in the UK which had been to provide specific protection within a general framework of residual freedoms; judges now have the power to interpret and apply general rather than very specific rights.

There is a possibility of conflict between judges and Parliament, since judges are going beyond merely interpreting the law; they can by implication comment on the wider implications of Acts of Parliament.

Judges will not be able to stop the implementation of Acts as in Canada, as this was thought incompatible with Parliamentary Supremacy, but they will be able to strike down secondary legislation (statutory instruments) and they  will be able to declare existing Acts of Parliament incompatible with the Convention; the government would then move to then change the law, but they would not have a statutory obligation to do so. This is similar to the New Zealand system.

There will be a fast track system of changing the law in Parliament so as to comply with court rulings

If the Government refuses to change legislation, an individual will still be able to take the case to the European Court of Human Rights at Strasbourg.

All public authorities, such as the police and local authorities, will be legally bound to comply with the Convention. If a court judges that they have done so, it may quash their decisions.

Ministers introducing legislation will have to make a declaration that the measures comply with the Convention's central provisions.

Consequences

    Ordinary citizens have more legal remedies for grievances in the courts, and there is the likelihood of a spate of class actions, that is actions brought on behalf of a particular group, for example Article 11 gives the 'Right to freedom of peaceful assembly and freedom of association, including the right to form and join trade unions.' This could lead to actions on the part of trade unionists or those prevented from protesting against the visit of the Chinese President.   

In political terms this is likely to increase public awareness of their new rights, and lead to greater demands for government accountability; this is of course a trend that has been emphasised by a new Freedom of Information law.

The UK is moving closer to a written constitution in the model of the USA and Europe.

Judges have been brought more into political arena as they've been given more discretion to interpret the provisions of the European Convention. This contrasts with the pre-HRA system where Parliament passed detailed legislation on particular cases such as the Equal Opportunity laws and Race Discrimination laws.

The way they're appointed will come under more scrutiny: some MPs want a judicial appointments committee that would include lay people to encourage more representative judges. This is a very contentious area since it raises the issue of judicial independence (judges should not it can be argued be seen to be representative in the way that elected representatives are).  Also some want prospective Law Lords to be vetted by a Select Committee of the Commons. The Pinochet case has high lighted some of these issues: Judge Hoffman sat in the original hearing and it turned out that he had an interest in Amnesty International that was lobbying for extradition; Hoffman was therefore  'a judge in his own court'. If judges are to hear more cases involving disputes between the government or public bodies and private groups and individuals, it may also seem inappropriate to have the most senior judges sitting in Parliament.

There is the possibility of a new law of privacy from Article 8 which could limit press freedom; to prevent this the government amended the Human Rights Bill,: adding a requirement stating that:

'courts dealing with privacy cases under Article 8 of the convention, which covers respect for private and family life, home and correspondence,   must have particular regard to freedom of expression which is protected under Article 10'

'that a court hearing a case involving journalistic, literary or artistic material must take into account the issue of public interest, including whether the newspaper has acted fairly and reasonably and abided by the PCC's code of practice.' 

A de facto limit on parliamentary powers, eg article 7 (Prohibition against legislation retrospectively creating a criminal offence or increasing the penalty for an offence.) This would outlaw the War Crimes Act of 1990, also as a body of case law is built up in the courts this will influence future governments in the legislation that can be brought in subsequently; governments will have to consider how any new Acts may conflict with the Bill of Rights. This therefore is a move towards more checks and balances in government.

HOW EFFECTIVELY ARE CIVIL LIBERTIES PROTECTED IN BRITAIN? 

National Civil Rights Movement in the UK

UN critical of emergency powers legislation in N Ireland

DAN's charter

Civil liberties are the legal rights which we have to fully participate as citizens of a particular state. They cover such things as the right to vote, freedom of speech, movement, association, conscience, and equality before the law. Until 2000 October the UK did not have a Bill of Rights, other than in Scotland, and so their rights were protected mainly by the ordinary law and some statutory rights. This in turn was supported by an independent judiciary and the good faith of governments (politicians) to change the law as required. 

There is also the possibility of appeals to the European Commission on Human Rights and from there to the European Court on Human Rights (ECHR). 

The legal position domestically, was that UK enjoyed for the most part residual rights. Those things that a person can do after the politicians have passed limiting laws. It can be regarded as the area of freedom we are left with. This is the traditional pattern of rights in the UK; the whole system of rights changed following the new Labour government’s decision to incorporate the European Convention into UK law.

As far as civil rights are concerned there are a number of statutes that are important, such as the Representation of the People Act that sets out the rules for the conduct of elections such as the right of reply for political parties on television. Others are the Race Relations Act and the Equal Opportunities Act, both of which outlaw discrimination on grounds of race or gender.

Judges uphold rights through the process known as judicial review, in the context of the question of rights, this is the process by which judges interpret the legality of actions taken by  public bodies to decide if they are in accordance with the statute and common law. There is substantial evidence that judges are prepared to protect individual rights against the wishes of the government or other public bodies. For example:

1994 Matrix Churchill trial collapses after the judge over-rules ministers use of so called gagging orders by Ministers, thus ending the trial of the Matrix Churchill directors and throwing doubts on the motives of the government.

July 97 A senior judge criticised the CPS over the handling of the Stephen Lawrence case.

October 99 House of Lords ruled that a homosexual couple could be described as a family for the purposes of tenancy law; enables partners in gay relationships to carry on a secure tenancy agreement as if a heterosexual couple.

The problem with residual rights is that the government can pass laws that chip away at the residual area of freedom; in the 1980s for example the rights of Trades unions were reduced by industrial relations laws. For example the 1980 Act limits the numbers and possible places of pickets, the 1982 act excludes sympathetic action, political strikes, and the 1984 act gives employers the right to demand a ballot of trade union members before industrial action is started. In 1984 Mrs Thatcher imposed a ban on union membership at Government Communications Headquarters (also see in Part II of this Guide the GCHQ case). GCHQ is an electronic monitoring centre which intercepts communications using spy satellites, listening devices and code-cracking equipment. It routinely gathers information on drug-dealing, terrorism, and the movement of arms and key resources such as oil. Mrs Thatcher claimed that trade union membership created a conflict of interest with loyalty to the state. Fourteen employees were sacked in 1988 for refusing to leave the union. Seven thousand were offered £1,000 each in compensation. It was lifted by Labour in 1997.

The 1994 Criminal Justice and Public Order Act makes it possible to draw inferences from the silence in court of defendants, and reduces the rights of assembly. Recently Home Secretary Jack Straw has pledged to continue with his plans to restrict the right to trial by jury despite a Commons revolt and Lords defeat. This is his Criminal Justice (Mode of Trial) Bill, .

A problem with civil rights, is that there is not widespread agreement on what should be included; as society has become more pluralistic, campaigning groups have come up with more things to include, and there has been a tendency for more positive rights to be included. Supporters of positive rights take the view that people have entitlements to things like health, education, personal fulfillment, and this creates an obligation on the government to make those things available. This can be seen increasingly in the rights claimed by some minority groups. See for  example the case of the disabled, in DAN's charter  Also as society's attitudes and values change, so this throws up new questions of civil rights, perhaps the best example of this is that of gay people and other gender issues. As society becomes more fragmented it is likely that we will see increasing claims of discrimination by various groups.

The European Court of Human Rights had been a rather cumbersome remedy since cases take up to 5 years to be considered; also the rulings could be ignored where national interest was claimed. The UK had been found in breach of the Convention more than any other signatory to it. The Court's rulings have led to significant changes here: most recently the government announced that it would drop its ban on gays in the military after the Court ruled it contrary to Article 8 of the Convention. The system of criminal cases involving children is likely to be reformed following the ruling December 16th, that the killers of James Bulger had not had a fair trial as they had been tried in an adult court. 

From October 2000 judges in the UK have been able to interpret and uphold the European Convention in British Courts. This is a major change in how rights are upheld in the country. 

Some remedies have also been sought through the European Court of Justice under EU law principally the Treaty of Rome, e.g. the payment of winter fuel payments to women at 60 and men at 65 was ruled contrary to EU law.  At an earlier hearing the UK government was forced to bring the retirement ages of men and women into line.

The group that feels most strongly about the lack of civil rights is probably the Afro-Caribbean and West Indian community. They question the notion of equality before the law and argue that they are discriminated against by the criminal justice system, in particular the police. Undoubtedly the killing of Stephen Lawrence and the subsequent inquiry set up by Labour, threw open the whole race issue in the UK and in particular the issue of race and the criminal justice system. The MacPherson inquiry into the killing of Stephen Lawrence was established partly as a result of a very effective campaigning by the Lawrence family and their supporters. It led to the Metropolitan Police Force being described as guilty of  'institutionalised racism'. It influenced the government in its New Race Relations Bill 2000 This obliges all public bodies to have pro-active anti racist policies; it also outlaws indirect discrimination by public bodies. A couple of years after the report, the non-white community still feels that things have not improved significantly.

For the courts to adequately safeguard rights not only is it necessary to have the appropriate laws but for equality to exist, judges themselves must be impartial. Middle class crime e.g. fraud is seen to be treated more leniently than other offences. Members of the ethnic minorities are more likely to be given custodial sentences. However, the current Lord Chancellor has issued new guidelines to judges on dealing with ethnic minorities. See Lord Chancellor's Press notices on latest guidelines issued to new judges on dealing with ethnic minorities. This is a guide to be incorporated into the training of judges (partly the job of the Judicial Studies Board ). 28/09/1999 LAUNCH OF THE EQUAL TREATMENT BENCH BOOK However this led to a backlash from at least one senior judge. For the response of one judge to this see The Times Internet Edition Back Issues, Friday, 1st October 1999 'Judge criticises horrid political correctness'.

Further limits on civil rights are:

  • effective disenfranchisement by the undemocratic voting method, and the discrimination against smaller parties. Our system of voting makes it difficult for parties whose support is spread thinly, to get seats in Parliament, and those of the opposing party in safe seats effectively are disenfranchised.
  • the secretive nature of British government, notwithstanding the new Freedom of Information Act. Voters can only express real choices if they have adequate information about the government, in particular what it knows. A good example of this was the refusal of Jack Straw to release the medical information on General Pinochet, so the claimants for extradition could not challenge Straw's decision not to extradite. However, the courts ruled against Jack Straw. The UK has a Freedom of Information Act 2000, a stronger version of which has come into force in Scotland under devolved powers. However critics of the Act had highlighted the additional 'safeguards' given to ministers by Jack Straw as it went through Parliament as a Bill.

Whatever system of rights the UK now has, it's important to realise that effective civil rights ultimately depend on a mix of the legal, democratic,  and even civic values. The USA had a Bill of Rights for many years which was actually used by whites to deny civic rights to blacks.

Resources

The Macpherson Report back to contents

The Macpherson Report into the Stephen Lawrence case contains 70 key recommendations for society to show "zero tolerance" for racism.

They include measures aimed at improving the accountability of the police.

But Sir William Macpherson's report also demands action in other public bodies. The judicial system, the civil service, local government, the NHS and schools will all have to make changes if the recommendations are implemented in full.

Recommendations in full:

Openess, accountability, and the restoration of confidence

1. That a Ministerial Priority be established for all Police Services: "To increase trust and confidence in policing amongst minority ethnic communities".

2. The process of implementing, monitoring and assessing the Ministerial Priority should include Performance Indicators in relation to:
the existence and application of strategies for the prevention recording, investigation and prosecution of racist incidents;
measures to encourage reporting of racist incidents;
the number of recorded racist incidents and related detection levels;
the degree of multi-agency cooperation and information exchange;
achieving equal satisfaction levels across all ethnic groups in public satisfaction surveys;
the adequacy of provision and training of family and witness/victim liaison officers;
the nature, extent and achievement of racism awareness training;
the policy directives governing stop and search procedures and their outcomes;
levels of recruitment, retention and progress of minority ethnic recruits; and levels of complaint of racist behaviour or attitude and their outcomes. The overall aim being the elimination of racist prejudice and disadvantage and the demonstration of fairness in all aspects of policing.

3. That Her Majesty's Inspectors of Constabulary (HMIC) be granted full and unfettered powers and duties to inspect all parts of Police Services including the Metropolitan Police Service.

4. That in order to restore public confidence an inspection by HMIC of the Metropolitan Police Service be conducted forthwith. The inspection to include examination of current undetected HOLMES based murders and reviews into such cases.

5. That principles and standards similar to those of the Office for Standards in Education (OFSTED) be applied to inspections of police services, in order to improve standards of achievement and quality of policing through regular inspection, public reporting and informed independent advice.

6. That proposals as to the formation of the Metropolitan Police Authority be reconsidered, with a view to bringing its functions and powers fully into line with those which apply to other police services, including the power to appoint all chief officers of the Metropolitan Police Service.

7. That the Home Secretary and police authorities should seek to ensure that the membership of police authorities reflects so far as possible the cultural and ethnic mix of the communities which those authorities serve.

8. That HMIC shall be empowered to recruit and to use lay inspectors in order to conduct examination and inspection of police services particularly in connection with performance in the area of investigation of racist crime.

9. That a Freedom of Information Act should apply to all areas of policing, both operational and administrative, subject only to the "substantial harm" test for withholding disclosure.

10. That investigating officers' reports resulting from public complaints should not attract Public Interest Immunity as a class. They should be disclosed to complainants, subject only to the "substantial harm" test for withholding disclosure.

11. That the full force of the race relations legislation should apply to all police officers, and that chief officers of police should be made vicariously liable for the acts and omissions of their officers relevant to that legislation.

Definition of racist incident

12. That the definition should be: "A racist incident is any incident which is perceived to be racist by the victim or any other person."

13. That the term "racist incident" must be understood to include crimes and non-crimes in policing terms. Both must be reported, recorded and investigated with equal commitment.

14. That this definition should be universally adopted by the police, local government and other relevant agencies.

Reporting and recording of racist incidents and crimes

15. That codes of practice be established by the Home Office, in consultation with police services, local government and relevant agencies, to create a comprehensive system of reporting and recording of all racist incidents and crimes.

16. That all possible steps should be taken by police services at local level in consultation with local government and other agencies and local communities to encourage the reporting of racist incidents and crimes. This should include:
 

  • the ability to report at locations other than police stations;
     
  • the ability to report 24 hours a day.

    17. That there should be close co-operation between police services and local government and other agencies, including in particular housing and education departments, to ensure that all information as to racist incidents and crimes is shared and is readily available to all agencies.

    Police practice and the investigation of racist of crime

    18. That ACPO, in consultation with local Government and other relevant agencies, should review its Good Practice Guide for Police Response to Racial Incidents in the light of this report and our recommendations. Consideration should be given to the production by ACPO of a manual or model for such investigation, to complement their current Manual of Murder Investigation.

    19. That ACPO devise Codes of Practice to govern reviews of investigations of crime, in order to ensure that such reviews are open and thorough. Such codes should be consistently used by all Police Services. Consideration should be given to such practice providing for reviews to be carried out by an external Police Service.

    20. That MPS procedures at the scene of incidents be reviewed in order to ensure co-ordination between uniformed and CID officers and to ensure that senior officers are aware of and fulfil the command responsibilities which their role demands.

    21. That the MPS review their procedures for the recording and retention of information in relation to incidents and crimes, to ensure that adequate records are made by individual officers and specialist units in relation to their functions, and that strict rules require the retention of all such records as long as an investigation remains open.

    22. That MPS review their internal inspection and accountability processes to ensure that policy directives are observed.

    Family liaison

    23. That police services should ensure that at local level there are readily available designated and trained family liaison officers.

    24. That training of family liaison officers must include training in racism awareness and cultural diversity, so that the families are treated appropriately, professionally, with respect and according to their needs.

    25. That family liaison officers shall, where appointed, be dedicated primarily if not exclusively to that task.

    26. That senior investigation officers and family liaison officers be made aware that good practice and their positive duty shall be the satisfactory management of family liaison, together with the provision to a victim's family of all possible information about the crime and its investigation.

    27. That good practice shall provide that any request made by the family of a victim which is not acceded to, and any complaint by any member of the family, shall be formally recorded by the SIO and shall be reported to the immediate superior officer.

    28. That police services and victim support services ensure that their systems provide for the pro-active use of local contacts within minority ethnic communities to assist with family liaison where appropriate.

    Victims and witnesses

    29. That police services should, together with the Home Office, develop guidelines as to the handling of victims and witnesses, particularly in the field of racist incidents and crimes. The victim's charter to be reviewed in this context.

    30. That police services and victim support services ensure that their systems provide for the pro-active use of local contacts within minority ethnic communities to assist with victim support and with the handling and interviewing of sensitive witnesses.

    31. That police services ensure the provision of training and the availability of victim/witness liaison officers, and ensure their use in appropriate areas, particularly in the field of racist incidents and crimes, where the need for a sensitive approach to young and vulnerable victims and witnesses is paramount.

    Prosecution of racist crimes

    32. That the standard of proof of such crimes should remain unchanged.

    33. That the CPS should consider that, in deciding whether a criminal prosecution should proceed, once the CPS evidential test is satisfied, there should be a rebuttable presumption that the public interest test should be in favour of prosecution.

    34. That police services and the CPS should ensure that particular care is taken at all stages of prosecution to recognise and to include reference to any evidence of racist motivation. In particular it should be the duty of the CPS to ensure that such evidence is referred to both at trial and in the sentencing process (including Newton hearings). The CPS and counsel to ensure that no "plea bargaining" should ever be allowed to exclude such evidence.

    35. That the CPS ensure that a victim or victim's family shall be consulted and kept informed as to any proposal to discontinue proceedings.

    36. That the CPS should have the positive duty always to notify a victim and victim's family personally of a decision to discontinue, particularly in cases of a racist crime, with speed and sensitivity.

    37. That the CPS ensure that all decisions to discontinue any prosecution should be carefully and fully recorded in writing, and that save in exceptional circumstances, such written decisions should be disclosable to a victim or a victim's family.

    38. That consideration should be given to the Court of Appeal being given power to permit prosecution after acquittal where fresh and viable evidence is presented.

    39. That consideration should be given to amendment of the law to allow prosecution of offences involving racist language or behaviour, and of offences involving the possession of offensive weapons, where such conduct can be proved to have taken place otherwise than in a public place.

    40. That the ability to initiate a private prosecution should remain unchanged.

    41. That consideration should be given to the proposition that victims or victims' families should be allowed to become "civil parties" to criminal proceedings, to facilitate and to ensure the provision of all relevant information to victims or their families.

    42. That there should be advance disclosure of evidence and documents as of right to parties who have leave from a coroner to appear at an inquest.

    43. That consideration be given to the provision of legal aid to victims or the families of victims to cover representation at an inquest in appropriate cases.

    44. That police services and the courts seek to prevent the intimidation of victims and witnesses by imposing appropriate bail conditions.

    Training

    First aid

    45. That first aid training for all "public contact" police officers (including senior officers) should at once be reviewed and revised to ensure that they have basic skills to apply first aid officers must be taught to "think first aid", and first and foremost "A (Airways), B (Breathing) and C (Circulation)".

    46. That training in first aid, including refresher training, should include testing to recognised and published standards in every police service.

    47. That police services should annually review first aid training, and ensure that "public contact" officers are trained and tested to recognised and published standards.

    Racism awareness and valuing cultural diversity

    48.That there should be immediate review and revision of racism awareness training within police services to ensure:
     

  • that there exists a consistent strategy to deliver appropriate training within all police services, based upon the value of our cultured diversity;
     
  • that training courses are designed and delivered in order to develop the full understanding that good community relations are essential to good policing and that a racist officer is an incompetent officer.

    49. That all police officers, including CID and civilian staff, should be training in racism awareness and valuing cultural diversity.

    50. That police training and practical experience in the field of racism awareness and valuing cultural diversity should regularly be conducted at local level. And that it should be recognised that local minority ethnic communities should be involved in such training and experience.

    51. That consideration be given by police services to promotion joint training with members of other organisations or professions otherwise than on police premises.

    52. That the Home Office, together with police services, should publish recognised standards of training aims and objectives in the field of racism awareness and valuing cultural diversity.

    53. That there should be independent and regular monitoring of training within all police services to test both implementation and achievement of such training.

    54. That consideration be given to a review of the provision of training in racism awareness and valuing cultural diversity in local government and other agencies including other sections of the criminal justice system.

    Employment, discipline and complaints

    55. That the changes to police disciplinary and complaints procedures proposed by the Home Secretary should be fully implemented and closely and publicly monitored as to their effectiveness.

    56. That in order to eliminate the present provision which prevents disciplinary action after retirement, disciplinary action should be available for at least five years after an officer's retirement.

    57. That the police services should, through the implementation of a code of conduct or otherwise, ensure that racist words or acts proved to have been spoken or done by police officers should lead to disciplinary proceedings, and that it should be understood that such conduct should usually merit dismissal.

    58. That the Home Secretary, taking into account the strong expression of public perception in this regard, consider what steps can and should be taken to ensure that serious complaints against police officers are independently investigated. Investigation of police officers by their own or another police service is widely regarded as unjust, and does not inspire public confidence.

    59. That the Home Office review and monitor the system and standards of police services applied to the selection and promotion of officers of the rank of inspector and above. Such procedures for selection and promotion to be monitored and assessed regularly.

    Stop and search

    60. That the powers of the police under current legislation are required for the prevention and detection of crime and should remain unchanged.

    61. That the Home Secretary, in consultation with police services, should ensure that a record is made by police officers of all "stops" and "stops and searches" made under any legislative provision (not just the police and Criminal Evidence Act). Non-statutory or so called "voluntary" stops must also be recorded. The record to include the reason for the stop, the outcome, and the self-defined ethnic identity of the person stopped. A copy of the record shall be given to the person stopped.

    62. That these records should be monitored and analysed by police services and police authorities, and reviewed by HMIC on inspections. The information and analysis should be published.

    63. That police authorities be given the duty to undertake publicity campaigns to ensure that the public is aware of "stop and search" provisions and the right to receive a record in all circumstances.

    Recruitment and retention

    64. That the Home Secretary and police authorities' policing plans should include targets for recruitment, progression and retention of minority ethnic staff. Police authorities to report progress to the Home Secretary annually. Such reports to be published.

    65. That the Home Office and the police services should facilitate the development of initiatives to increase the number of qualified minority ethnic recruits.

    66. That HMIC include in any regular inspection or in a thematic inspection a report on the progress made by police services in recruitment, progression and retention of minority ethnic staff.

    Prevention and the role of education

    67. That consideration be given to amendment of the National Curriculum aimed at valuing cultural diversity and preventing racism, in order better to reflect the needs of a diverse society.

    68. That local education authorities and school governors have the duty to create and implement strategies in their schools to prevent and address racism. Such strategies to include:
     

  • that schools record all racist incidents; that all recorded incidents are reported to the pupils' parents/guardians, school governors and LEAs;
     
  • that the numbers of racist incidents are published annually, on a school by school basis;
     
  • that the numbers and self defined ethnic identity of "excluded" pupils are published annually on a school by school basis.

    69. That OFSTED inspections include examination of the implementation of such strategies.

    70. That in creating strategies under the provisions of the Crime and Disorder Act or otherwise police services, local government and relevant agencies should specifically consider implementing community and local initiatives aimed at promoting cultural diversity and addressing racism and the need for focused, consistent support for such initiatives.

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