Civil rights and civil liberties

The UK has a tradition of civil rights and civil liberties dating back atleast to the Magna Carta in the 13th century. Whilst successive governments haverepealed most of the Magna Carta over the past 200 years or so, its guarantee ofdue process of law remains in effect. Other old statutes, such as the Bill ofRights 1689, contain civil liberties provisions that continue to apply today.

The UK is, however, somewhat unusual in comparison to many other countries inthat civil rights and civil liberties come from a hodgepodge of statutes andcommon law, and are not enshrined in any unitary document such as a writtenconstitution. Thus, Parliament is, in effect, the ultimate guarantor of civilrights and civil liberties in the UK.

Difference between civil rights and civil liberties

Before we continue our analysis, it's important to stress that the terms'civil rights' and 'civil liberties' are not synonymous.

Civil liberties

Civil liberties describe basic rights and freedoms designed to forestalltyranny and arbitrary government. Such rights and freedoms include:

• free speech;
• free assembly;
• the right to marry;
• the right to vote;
• the right of privacy;
• the right to a fair trial; and
• the right to be free from unreasonable searches of your home or personwithout a warrant.

Civil rights

Civil rights describe basic rights to be free from unequal treatment orharassment based on certain protected characteristics, such as race, gender,age, disability, religion/belief, sexual orientation and nationality.

An example to demonstrate the difference

One way to consider the difference between civil rights and civil libertiesis to look at 1) what right is affected, and 2) whose right is affected. Forexample, as an employee, you do not have the legal right to a promotion, mainlybecause getting a promotion is not a guaranteed civil liberty. But, as a femaleemployee you do have the legal right to be free from discrimination in beingconsidered for that promotion -- you cannot legally be denied the promotionbased on your gender (or race, or disability, etc.). By choosing not to promotea female worker solely because of the employee's gender, the employer hascommitted a civil rights violation and has engaged in unlawful employmentdiscrimination based on sex or gender.

Human Rights Act 1998

The primary statutory source of civil liberties in the UK is the Human RightsAct 1998, which incorporates the provisions of the European Convention on HumanRights into domestic law. The UK was one of the original signatories to theConvention, and one of the first countries to ratify it (in 1951). TheConvention guarantees a wide range of civil liberties, such as the right tolife, the right to a fair trial, and the right to respect for private and familylife, and a number of others.

Until the Human Rights Act 1998 was enacted, a person in the UK who wanted toenforce his rights under the Convention had to make an application to theEuropean Court of Human Rights in Strasbourg. The Human Rights Act 1998 enablesa person to apply to the courts in the UK to enforce Convention rights that theAct incorporated.

The Act requires that all UK legislation be put into practice and interpretedin a way that is compatible with the Convention. It also gives the court thepower to find that subordinate legislation (such as statutory instruments) isinvalid if it is inconsistent with the Convention and to make a declaration thatprimary legislation (such as a statute) is incompatible with the Convention. Ifthe court declares that a statute is incompatible with the Convention, agovernment minister is then given the power to change the statute so that itbecomes compatible with the Convention.

The Act also prohibits a public authority from acting in a way that is notcompatible with the Convention, and enables people to sue the public authorityif it does so. For the purposes of the Act, private entities that carry outpublic functions (such as a privately run prison) are regarded as publicauthorities, and people can sue them if they act in breach of the Convention.

In making decisions in cases where people claim a breach of the Act, thecourt is required to make its decisions so as to develop UK case law in a waythat is compatible with the Convention, and is required to take account of caselaw developed by the European Court of Human Rights.

Since the Human Rights Act 1998 came into effect, there have been manydecisions by the UK courts -- some of which have been controversial -- in whichthey have found that a public authority has breached a person's rights under theAct.

Equality Act 2010

The Equality Act 2010 will come into force in stages, with the mainprovisions taking effect in October 2010.

The Equality Act consolidates some existing laws relating to the way people'srace, gender, age, sexual preference and socio-economic status affect theirlegal status and activities, and creates a number of new requirements. The Actwill require public bodies to take greater account of the need to treat peopleequally and fairly in carrying out their functions. It will also allow employersto take positive action in order to promote equality -- by, for instance,specifically requesting job applications from people of certain races in orderto bring about a more diverse workforce.

The Act is an extremely broad-ranging law affecting both civil rights andcivil liberties. TheGovernment Equalities Officewebsite has a number of publications explaining the Act and related issues.

The constitutional basis for civil rights and civilliberties

Although legal scholars have debated the question whether there is a form offundamental law that gives rise to "constitutional rights" in the UK, theconsensus view seems to be that there is not. The legal protection for people'scivil rights and civil liberties instead arises from statutory law and treaties(such as the Human Rights Act 1998 and the European Convention on Human Rights).

Perhaps the main, widely-acknowledged constitutional principle that protectspeople's rights and liberties in the UK is the supremacy of Parliament. This is,in effect, the principle that Parliament is not in any way restricted in itslaw-making authority. A Parliament cannot bind future Parliaments, and thereforeany Act of Parliament can be subsequently altered or repealed.

The supremacy of Parliament would appear to apply to all UK law relating tocivil rights and civil liberties. Even ancient statutory protections can berepealed. As indicated above, most of the provisions of the Magna Carta wererepealed by Parliament after being valid law for centuries. In addition, itwould seem that the UK courts' powers under the Human Rights Act 1998 -- whichare granted by statute -- are also subject to any future Parliamentary action.

And human rights?

'Human rights' encompass both civil liberties and civil rights. The term alsoincludes rights and liberties that have been legally recognised, perhaps at theinternational level in documents like theInternational Covenant onEconomic, Social and Cultural Rights (to which the UK is a signatory), butwhich people may find difficult to enforce domestically.

For example, Article 13of the Covenant recognises the right of everyone to education and statesthat government must ensure that education is "directed to the full developmentof the human personality and the sense of its dignity" and "enable all personsto participate effectively in society".

Article 13 then lists steps the government should take to achieve the fullrealisation of the right. But the Covenant provides no means to ensurecompliance or measure success, at least not in any qualitative sense, to ensurepublic/state education enables people to participate "effectively" in society.

Enforcing your rights and protecting your liberties

If you feel your rights or liberties have been compromised, you may want toresearch your options under the Human Rights Act 1998 and the Equality Act 2010by visiting theMinistry ofJustice andGovernment EqualitiesOffice websites. The Equalityand Human Rights Commission website also has a wealth of information abouthuman rights law.

Alternatively, you may want to consult a solicitor to help you decide what todo. You can find a solicitor in yourarea for free via solicitor matchingservices, which can also help you to understand the best course of actionfor your situation and whether you are even ready tohire a solicitor.

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