Civil Liberties

Civil Liberties

Traditional Protection for human rights was given to parliament and the courts – however the significant overlap between the executive and parliament, parliaments role in this has been somewhat limited. So the protection of rights in the UK have traditionally been the preserve of the courts. The first example we can see of this is the case of Entick v Carrington where the courts held that kings messengers, by exceeding their authority, had committed a trespass. However, there have always been limits to capacity of the common law to perform this role. In 1987 for example, Lord Bridge remarked that  the decision of the House of lords to uphold an interim injunction preventing the sale of the novel “Spycatcher” had severely undermined his confidence in the capacity of the common law to safeguard rights and freedoms essential for a free society (AG v Guardian-Newspapers 1986).

One of the key areas in which the common law has proved inadequate is in the area of equality before the law. The common law has proved inadequate to prevent acts of discrimination and as a result, a series of acts have been passed to prevent various forms of discrimination. These include acts that prevent racial, sexual, and age based discrimination. In addition to this, a number of commissions were established to enforce the rights protections in this areas  such as the Commission for Racial Equality, the Equal Opportunity Commission and the Disability Rights Commission. These commissions were merged to create the Commission for Equality and Human Rights in 2006.

Race Based Discrimination

The first race relations acts were passed in 1965. Their purpose was to prevent discrimination based on the grounds of color race nationality or ethnic origin.  The current act – the Race Relations Amendment Act of 2000, imposes a duty on public officers to eliminate all kinds discrimination. It also extends the authority of the act to the police and makes police chiefs vicariously liable for acts of discrimination that are made by their officers.

What is a Racial Minority?

This has been defined as “an ethnic group with a long shared history and a common geographical origin” also, they should distinctive cultural traditions, common language and religion, common literature and be a minority in a larger society.

Based on this definition, courts have held in Mandla v Dowell Lee (1983) that Sikhs are a distinct racial group, in Seide v Gillette Industries (1980) that Jews are a distinct group and Commission for Racial Equality v Dutton (1989) that Gypsies are a distinct group. However, the court held that Rastafarians do meet the criteria for an ethnic group (Dawkins v Department of Environment 1993)

Rastafarians did not form a separate ethnic group for the purposes of the Race Relations Act 1976, and a Rastafarian who was denied a job as a van driver because he wore his hair long and refused to cut it had not been the victim of racial discrimination as defined in the Act.

Direct and Indirect Discrimination

Direct discrimination includes deliberate act that seek to segregate on the grounds of race and to provide separate facilities for different races, irrespective of the quality of the facilities. To make proving discrimination discrimination easier (there can be other reasons given for, eg rejecting a job application) burden of proof has been shifted to the alleged discriminator.

Indirect discrimination is where a person conducts himself in a manner which is not directly discriminatory but has the indirect effect of causing discrimination. Again, this is difficult to prove, so the burden of proof shifts to the alleged perpetrator of the offence. Examples of this – putting in place school uniforms which ban the wearing of headgear required by particular religions. Mandla v Dowell Lee (1983).

Exceptions to Protection

Certain smaller sizes of businesses are exempted from the Act. Also, there are exemptions to allow authenticity – i.e. Indian restaurants are permitted to hire only Indian waiters.

Sexual Discrimination

This has a long history and manifests itself in many forms – absence of the ability to own property, worse pay for women, sanctioning of marital rape etc. It can be both direct and indirect. Indirect is where conditions of employment include certain specifications that exclude women –

e.g. certain height requirements.

There are a number of statutes that have been put in place to correct sexual discrimination – These include the Equal Pay Act 1970 and the Sex Discrimination Act 1975. These are designed to provide protections in the area of employment discrimination for women. They make it illegal to discriminate either by way of sex or marital status in the context of employment.

More recently,  the adoption by the EC of Council Directive 2000/78 (the Employment Directive) required the UK to introduce legislation  prohibiting discrimination on grounds of sexual orientation and religion or belief, which it did in the form of the Employment Equality (Sexual Orientation) Regulations 2003 (SO Regs) and the Employment Equality (Religion or Belief) Regulations 2003 (the RB Regs).  The same Directive resulted in the introduction of significant amendments to the DDA which have served to bring that Act broadly into line with the other legislation insofar as it deals with employment, and will in 2006 result in the regulation of age discrimination in the employment context. The RRA has been amended to give effect to the Race Directive (Council Directive 2000/43) and in October 2005 the SDA was amended to give effect to the Equal Treatment Amending Directive (Council Directive 2002/73).

Burden of Proof

The burden of proof is on the woman to show that but for her gender she would have been treated more favorably. I.e. it rests on the complainant. This was determined by the case Nelson v Carillion Services Ltd (2003).  

EG Home Office v Saunders – prison rules bar men from searching female prisoners, but allow women to search male prisoners.

Ratcliffe v North Yorkshire Council – made women redundant, rehired them at less pay – left men untouched.

Pregnant Women:  Webb v EMO Cargo 1992  – woman had been dismissed from work because she was pregnant. House of Lords held that the dismissal was justified because if she had been a man who had a temporary disability she would also have been dismissed. She appealed to the ECJ who held that being pregnant was unlike having a male illness as it was not pathological/medical. Also, pregnancy was just a temporary impairment.

Gender discrimination rules also apply when men are unfairly treated. For example in the case of R v Sec of State for Employment Ex Parte EOC (1995), where it was held that if a man was elgible for redundancy payment, it  would be discriminatory if women were not eligible for the same treatment.

Recently, strides have been made to recognize the rights of transgender persons. E.g. Chief Constable of West Yorkshire Police v A 2004 where it was held that a man who had a sex change operation can be employed as a woman. However, in Bellinger v Bellinger, the court ruled that a marriage between a man and a male to female transsexual was void. The Gender Recognition Act has put in place a process for determining gender through a panel which includes both Drs and lawyers. Once gender is satisfactorily shown, one is granted a certificate.  Being declared a different gender does not affect parental rights and responsibilities.

Sexual Harassment is also prohibited by the sex discrimination Act , which prohibits conduct of a sexual nature or other conduct based on sex affecting the dignity of men and women at work”  e.g. a sexist comment directed at a female firefighter in Hereford and Worcester Council v Clayton 1976. 

Also, HL has held that a tort exists in nuisance to prevent constant unwanted phone-calls from a former boyfriend. Khorasandjian v Bush (1993)

Disability and Discrimination

The Disability Act was passed in Parliament in 1995, and amended in 1999 to create the Commission on Disability. A person has a disability under the act where he or she has a mental of physical impairment which has a substantial and long term adverse effect on his or her ability to carry out normal day to day activities.    It however allows employers to discriminate in favor of disabled people

Archibald v Fife Council 2004 – where it as lawful for an employer to promote a recently disabled employee to a more sedentary post without competing for it.

Compare this to the case of O’Hanlon v Revenue and Customs Commsioners 2006, in which a disabled person was dismissed after lengthy periods of sick leave caused in part by his disability. The employer would have treated any employee the same way in those circumstances.

Freedom of Association and Assembly

The HRA 1998, the ECHR Provides in article 11 that:

Article 11Freedom of assembly and association

1Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

Note that this provision includes a number of exceptions to this broad rule.

Freedom of Association allows a citizens to join any club or society etc – provided that they are not military or quasi military organizations.

R v Jordan and Tyndall (1963) prohibition put in place against persons who were members of fascist group as statute (Public Order Act 1936) prevents the creation of groups of a military or quasi – military nature.

Freedom of Assembly

This is a right that is now heavily regulated by statute, both directly and indirectly. This is not surprising – this is a right that is largely created by statute. There are a number of direct and indirect restrictions to Freedom of Assembly.

Direct Restrictions – where there are direct restrictions on the right to assembly – e.g. on private property where there is no right of public access. Also at certain landmarks such as t Trafalgar Square where permission must be granted by the Secretary of State for the Environment.

Indirect Restrictions

Indirectly, public meetings can be restricted because they constitute a breach of the peace, or that they are obstructing police officers or a public highway.

Breach of the peace:

What is it?

 “a breach of peace occurs whenever harm is actually done, or threatened to be done, to a person or in his presence to his property. R v Howell 1982;

“there is a breach of the peace whenever a person who is lawfully carrying out his work is unlawfully and physically prevented by another from doing so. R v Chief Constable of Devon and Cornwall, Ex Parte Central Electricity Generating Board (1982)

Examples

Beatty v Gillbanks 1882 – cannot be held responsible for the unlawful acts of rival protestors (but see Nicol v Director of Public Prosecutions (1996) where the protestors were trying to provoke the anglers.

Redmond-Bate v DPP 1999– Women Preachers arrested while preaching to a hostile crowd.  Held that free speech was to be protected as long as it did not encourage violence.

There does not have to be proximity for there to be breach – Moss v McLachlan 1985 – miners arrested 4 miles away from a protest that they intended to join. See also R v Chief Constable of Gloucestershire Constabulary 2004 – on their way to protest at an airbase – it was reasonable to stop them from protesting, but to escort them back to London was disproportionate.

Appleby v UK 2003 right of assembly must take into regard the rights of property owners.

Obstructing the Police

Under the Police Act, it is an offence to assault a constable in the performance of his duty, or obstruct a constable in the conduct of his duty.

Also an offence to obstruct a highway. But there actually has to be an obstruction of the highway – cannot be hypothetical.DPP v Jones 1999.

Public Order Acts 1986

Passed as a response to riots, demonstrations and football hooliganism. Aim was to control disorderly conduct and to control demonstrations. Amended by:

• Criminal Justice and Public Order Act and Also
• Crime and Disorder Act.

What is Public?

Defined as “any highway”

Any place to which at the material time, the public or any section of the public has access on payment or otherwise, as of right by virtue of express or implied permission.

Requirement of notice – there has to be at least 6 clear days – except where its impractical to do so (this allows for more spontaneous demos. Police may impose conditions or ban processions, but must obtain consent from Home Secretary or local authority before a ban can put in place.

Police may enter private meetings where they reasonably expect a breach of the peace to occur.

Offences under the Public Order Act include:

• Riot (12 or more persons present together threaten to use violence  for a common purpose), Violent Disorder (3 people, can include threat of violent conduct, enough to cause a reasonable person to fear for his safety),
• Affray (uses or threatens unlawful violence towards another and his conduct is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety) ,
• Fear of Provocation of Violence (using threatening or insulting words to another),
• Harassment, Alarm or Distress (threatening abusive or insulting words, or displays signs showing signs with threatening insulting writings, causing harassment, alarm and distress)

Freedom of Expression and Privacy

This is necessary in any democratic society and has long been recognized as an important right in the UK democratic system. It allows an individual to express any view he or she wishes, however offensive to others they might be. It’s a necessary ideal for any democracy – without it, it would be difficult to hold democratic governments accountable.

Freedom of Speech has existed in the UK, but was first codified by the HRA.

Article 10Freedom of expression

1Everyone 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.

2The 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.

Note the restrictions that the HRA provides in respect of Freedom of Speech.

Based on these restrictions, there are restrictions against Sedition (“incite violence of public disturbance or disorder” against the government), Incitement to Disaffection (trying to dissuade members of the military from serving) and Treason (“giving aid and comfort to kings enemies); Also there are statutes prevent the publication of material that stirs up racial or religious hatred (“the Racial and Religious Hatred Act 2006”).

It works in interesting ways – but there is always a tension about when freedom of speech has gone too far, for example, in the two case of R v Secretary of State for the Home Department, Ex Parte Simms, it was held that a blanket restriction on prisoners to give interviews to a journalist to investigate what he considered to be the miscarriage of justice occasioned by his imprisonment was unlawful.

However, in R v Governor of Full Sutton Prison (2004), it was held that a rule preventing a prisoner from publishing material about his offences did not violate the right to freedom of expression. Prisoners should not be permitted to glorify the pleasure that his crime caused him”

It is important to note that the right to expression, as provided by the act, does not create a right to access to information:

R v Secretary of State for Environment, Food and Rural Affairs (2002); This decision confirmed earlier decisions which had held that governments are not required to hold certain kinds of public enquiries in public.

There are three accepted restrictions to Freedom of Speech: These are:

• Defamation
• Obscenity
• Privacy

Defamation

Sim v Stretch (1936) publication whether oral or written of a falsehood which damages the reputation of the person concerned and lowers the victim’s reputation in the eyes of “right thinking members of the society” Two kinds exist:

• Slander - spoken
• Libel - written

It can be civil or criminal, but criminal defamation is very rare. This is primarily a civil action brought in tort. Key to the constitution of this offence is that offending statements must be “published” – this can happen in a number of ways – including through the internet etc.

Defences to Defamation

Truth – self explanatory

Fair comment – the information is on a matter of public interest and consists of factual statements.

Unintentional – if the publication of the statement was made accidentally, and there have attempts to make amends

Absolute Privilege

Though the words are libellous, they are exempted from the law of defamation by statute – e.g.

if they are spoken in parliament, or in the course of judicial proceedings.

Qualified Privilege

Also a protection against statements that are ordinarily libellous, but the protections here are not absolute. They must be made without malice. And the matter should be one of public interest (Jameel v Wall Street Journal 2006)

Obscenity

This is governed by the Obscene Publications Act, 1959, creates an offence for the publication of obscene writings. Publication occurs when a person “distributes, sells, lets, hires, gives or lends it”.  It must “deprave or corrupt”. However there is no legal prohibition against pornography.

Privacy

Also not stated clearly by common law or statute. Stated in the negative rather than the positive. Various other rules imply it rather it being stated outright!

But now provided for under the Human Rights Act

Article 8Right to respect for private and family life

1Everyone has the right to respect for his private and family life, his home and his correspondence.

2There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Examples of the right to privacy.

Individual Privacy - Malone v UK (1984) court complains that the absence of rules governing listening to private conversations was problematic.

Family – Campbell v Mirror Group Papers – privacy weighed against public’s right to know. Therefore publicizing pictures od plaintiff leaving rehab centre was a breach