how can the judiciary protect human rights?

Kate Manson

How is the judiciary able to protect civil liberties in the UK?

Civil liberties are the freedoms and rights which the citizen of a state may enjoy, that are guaranteed by the state. Until 1998, with the passage of the Human Rights Act, the UK had no codified set of civil liberties. This meant that citizens’ rights were negative. A citizen could do anything up to the point where it becomes restricted by law. It is crucial that the judiciary is able to protect civil liberties and it has several methods with which to do this with, such as judicial review, the European Court of Human Rights and appealing to common law in the high court.

The Human Rights Act has provided the judiciary with a codified set of rules that they can use to protect civil liberties. However the government were unwilling to set aside the principle of parliamentary sovereignty which means that Westminster is not subject to the HRA. However the judiciary can make a ‘declaration of incompatibility’ which allows them to hold the government to account and protect the civil liberties of citizens in the UK. For example, with the Belmarsh detainees case in December 2004. Eight citizens were detained without trial under the Anti-Terrorism act of 2001. Members of the House of Lords declared that this violated the European Convention of Human Rights and violated the citizens’ civil liberties. The government were pressured successfully and was forced to amend the Act. Acts such as the Criminal Justice Bill in 2003 which advocated ‘double jeopardy’ was heavily criticised. The judges in the House of Lords have also obstructed Bills that are deemed to affect the rights of minorities, such as the anti-hunting bill in 2004. This shows that although Parliament does remain technically sovereign in the UK, the judiciary is able to exercise and pressure that the government would find difficult to resist, thus protecting civil liberties. The Human Rights Act can also be used by judges as an authority to cancel laws made by the Scottish Parliament where they are incompatible with the HRA. These bodies may also be forced to grant individual compensation. The Freedom of Information Act, which came into force in 2005, gives citizens and courts the rights to see a much wider range of documents than before. This gives the courts a wider scope for discovering whether injustice has been done and whether civil liberties have been abused. Judges can force protection of civil liberties with the use of the European Court of Human Rights (ECHR). The ECHR was incorporated into British law in 1998 and came into force in 2000. This gives British judges the power to enforce the European Convention.

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If an individual believes their rights have been offended under the Human Rights Act by a public agent they can call for a Judicial Review. The government can be brought to court on the same grounds as an ordinary person or organisation. It allows the Court to review the actions of public agents, such as ministers, and decide whether they acted ‘ultra vires’ outside their powers. Judges may also question any government acts which are “irrational” or highly unreasonable, or acts which show procedural impropriety. The use of judicial review as a means of questioning government’s actions has increased from 87 cases in 1968 to 3848 in 1997. Some argue that this growing number of cases means there is an increasing willingness on the part of the judiciary to intervene in the day-to-day business of government. Also the effectiveness of judicial review is limited by the reluctance of some judges to allow cases to go ahead and access to the system is limited as the right to a judicial review is not automatic. However the judiciary does have a number of remedies to protect civil liberties. The court can quash decisions made by public agents if they feel that they have been acting ‘ultra vires.’ A public body can be compelled to perform a specified function by law and any public body can be ordered not to carry out or to stop carrying out an action that the court decides is unlawful. A claimant for judicial review may also seek an injunction, a declaration or damages. In this way the judiciary has a number of methods to protect civil liberties that are disputed by judicial reviews. Judicial review is clearly a critical role because it helps to ensure that government does not overstep its powers. For example in the Judicial Review of 1997 Asylum Seekers and Social Security the judge ruled that Statute law to not give government the power to stop asylum seekers receiving benefits while their cases were being heard. Public enquiries can also be used to protect civil liberties. Judges are often called up to conduct public enquiries into matters of widespread public concern. This means that they can protect civil liberties by holding the government to account.

Since the Factortame case in 1994 European Union law has been given precedence over UK law. This means that the judiciary must uphold EU law over UK law. In ex parte EOC in 1994 it was ruled that British law failed to give part time workers the same employment rights as full time workers. EU law states that part time and full time workers should receive the same rights in employment. The superiority of EU law acts as another check on government and provides the judiciary with another set of rules to make sure civil liberties are protected.

Judges interpret the law, which can at times result in a judge upholding civil liberties. For example in July 2005, the power of the police to order youths back home was restricted by a decision that is made in the courts. The legal principle of stare decisis states that judges are obligated to follow the precedents established in prior decisions. Once the law has been interpreted other judges must follow that ruling. In this way judges can continue to protect civil liberties.

In recent years, judges have become more willing to defend civil liberties due to the emergence of a more ‘liberal’ judiciary. Lords Woolf, Hoffman and Bingham have all had an impact on the judiciary and these new liberal judges are more likely to judge against the government and for civil liberties than previous judges. For example Lord Woolf has openly criticised the erosion of civil liberties. In criticising the government the judiciary can put pressure on them to ensure civil liberties are protected.

Although elected representatives, the media, tribunals and pressure groups have played an increasingly important role in the protection of civil liberties in the UK, the judiciary remains the primary defence against the erosion of civil liberties. Judges have a lot of methods to enhance and protect civil liberties. Judicial review is an important example of these powers and can have a great impact on the organs of government and public bodies. Although the Human Rights act is not binding on Westminster it remains an important tool in tackling the erosion of civil liberties and provides judges with a codified set of rules to back up rulings. In recent decades I think more power has been given to the judiciary in being able to protect the civil liberties of citizens in the UK. Citizens have a clearer sense of their rights and freedoms than ever before and are able to take the necessary routes in ensuring that they receive these rights. Although parliamentary sovereignty remains an important part of the constitution the judiciary is able to hold government to account and pressurise them to protect civil liberties in the UK.

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