Transcript The British constitution and human rights protection

Alison Riley
Liceo G.Galilei di Dolo
May 12th 2011
Task - choose one or two newspaper extracts:
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What can you see in the picture? Describe the people
and actions. Read the text.
Have the people in the news committed any crimes?
Do you think the public authorities have violated
their human rights?
Which rights?
Could this happen in your country? (Are you sure?)
 What is the source of your legal rights?
 And if you went to Britain?
Task - examine some extracts from:
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The European Convention on Human Rights
 The Universal Declaration of Human Rights
 Amnesty International letter of appeal
 Franklin Roosevelt’s speech: Four Freedoms
 John Stuart Mill On Liberty – On Freedom of
Expression of Opinion
 The American Declaration of Independence
 The Bill of Rights 1689
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the system of rules defining the composition, powers
and relations of the state organs:
 the legislature, the executive, the judiciary
 the head of state: the monarch (UK)
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The system of rules regulating relations
between the state and individuals:
 civil liberties, individual rights and duties
 the scope and limits of state powers in relation to the individual
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It has evolved gradually over many centuries
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There has been no act of foundation:
 after a war, revolution, crisis
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It is unwritten:
 Not established in a single written instrument
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It has a variety of different sources:
 Legislation, judicial precedent (common law), conventions, custom,
European Union (EU) law, ECHR law, and others
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It is flexible, not entrenched:
 there is no special legislative procedure for reform
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Principles pronounced by judges in precedents must be
followed in later, similar cases – they are a primary
source of law
The British constitution has no written charter of rights
(no ‘Bill of Rights’)
The courts have traditionally defended the rights of the
individual against state
But Parliament can pass laws that restrict or change the
rules of precedent, including human rights
In the case of:
Rice v Connolly
“Though every citizen
has a moral duty to assist
the police … there is no
legal duty. The whole
basis of the common law is
the right of the individual
to refuse to answer
questions put to him by
persons in authority, and
to refuse to accompany
[them], short, of course, of
arrest.”
Lord Chief Justice Parker
High Court of Justice 1966
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People are free to do whatever they want
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So long as it does not conflict with a particular law
Example: freedom of speech – you can say
what you want, but:
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You must not reveal an official secret contrary to the
Official Secrets Act 1989
You must not incite racial hatred contrary to the
Public Order Act 1984
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You can say what you want, but:
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If you defame the reputation of another person, he
may take legal action against you:
 For money compensation (damages)
 For an injunction (a court order that you must stop or
interrupt your defamation, must not publish
defamatory material, etc.)
 If you break the terms of the injunction you may be sent
to prison and ordered to pay a fine for ‘contempt of
court’.
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Defences: truth, fair comment
Primary legislation is enacted by ‘the Queen in Parliament’:
 Acts of Parliament are also called statutes, laws, enactments
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Parliament is sovereign – it can enact any law it decides (in theory)
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Statute law has priority over common law in case of conflict
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Statute is the most important source of the British constitution today:
 Some major constitutional reforms under Tony Blair/Labour:
 Human Rights Act 1998
 Constitutional Reform Act 2005
 (transfers the judicial function
of the House of Lords to a new
Supreme Court of the UK)
The ECHR
becomes a
direct part
of British
law
Entry into
force: 2000
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British lawyers
helped draft the
text
Many rights and
freedoms are
based on
principles of the
common law
The UK was the
first state to ratify
the Convention
It came into force
in 1953
But no national
legislation for
almost 50 years
(HRA 1998)
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Came into force in the year 2000
Incorporated the European Convention on Human
Rights directly into British law
Has given the judges a more sensitive role
All public authorities must now act compatibly with
Convention rights (but not Parliament)
A victim can take action directly before the British
courts for a violation of Convention rights and seek a
remedy
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Victims can
make
individual
applications
to the Court
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Art.34 ECHR
First, national
remedies
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Art. 35 ECHR
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The Court can find that a
State Party has violated
the Convention
The Court can grant ‘just
satisfaction’ to the victim’:
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Money compensation
(Art. 41)
The judgment has
binding force
The Committee of
Ministers supervises
execution
(Art. 46)
THE STATE MUST
CHANGE NATIONAL
LAW
1 Everyone has the right to freedom of
expression. This right shall include freedom to
hold opinions and to receive and impart
information and ideas without interference by
public authority and regardless of frontiers.
This article shall not prevent States from
requiring the licensing of broadcasting,
television or cinema enterprises.
2 The exercise of these freedoms, since it carries with it
duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic
society, in the interests of national security, territorial
integrity or public safety, for the prevention of disorder
or crime, for the protection of health or morals, for the
protection of the reputation or rights of others, for
preventing the disclosure of information received in
confidence, or for maintaining the authority and
impartiality of the judiciary.
Limits are only permissible for:
 national security,
 territorial integrity or public safety,
 prevention of disorder or crime,
 protection of health or morals,
 protection of the reputation or rights of others,
 for preventing the disclosure of information
received in confidence,
 for maintaining the authority and impartiality
of the judiciary
The Strasbourg Court must perform a balancing
exercise:
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Are the means employed (the interference) justified
by the end (the objective, e.g. national security)?
UK national courts must now use the same approach
The Court must also decide between
competing interests:
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Whose interest should prevail?
Which interest should be protected?
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“A judge has banned the media from reporting
whether or not a criminal court has even sat
under a ‘very rare’ secrecy order.”
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A journalist who reports details of the order - or
even the fact that a hearing has taken place - could
be punished for contempt of court with:
 A fine (money penalty)
 Prison (one month)
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What could justify this restriction on freedom of the
press?
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Openness and transparency are key elements
of the criminal justice system
BUT IN THIS CASE:
 Restrictions were imposed after the judge heard
strong evidence that the life of one of the
participants (in the case) would be “in grave and
immediate danger if any details of the hearing were
published”.
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Consult Article 10(2) ECHR : what limit justifies the
court’s decision to impose press silence?
Whose are the competing interests in this case?
And what are those interests?
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Do you agree with this limitation on the freedom of
expression?
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What dangers can you see if press freedom is limited
like this?
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Think of some other recent examples to compare and
discuss
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Peter Leyland “The Constitution of the United Kingdom. A
Contextual Analysis” (Freedom of expression, pages 3-6; Chapter 2 Sources
of the Constitution; Chapter 7 Part III The Courts and the Human Rights Act 1998)
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Alison Riley “Legal English and the Common Law”
(Chapter 3.4,
The European Convention on Human Rights, pages 125-137; Chapter 3.6 L’Italia e
la Convenzione europea per i diritti dell’uomo, di Serena Forlati, pages 147-151)
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Hart Publishing, Oxford (2007)
Cedam, Padova (2008)
Official websites of:
Amnesty International
The Council of Europe
The European Court of Human Rights
 The Supreme Court of the United Kingdom
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