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Distinction Of Civil Liberties And Human Rights Administrative Law Essay

It is firstly important to distinguish between civil liberties and human rights, as any discussion of either should be aware that they are not interchangeable concepts. Stone (2004) points out that human rights are commonly used in the international context, for example the ECHR, whereas civil liberties are spoken of in domestic terms. Gearty (2007) expands on this differentiation to provide a definition of what constitutes civil liberties: “Civil liberties is another name for the political freedoms that we must have available to us all, if it to be true to say of us that we live in a society that adheres to the principle of representative, or democratic, government.” [1] Human rights therefore provide an overall framework of freedoms within in which more specific civil ones can arise, in a sense human rights are therefore more fundamental than civil liberties. A weakness of both Stone and Gearty is that they offer no practical implications for ignoring the distinctions between liberties and rights. Such a distinction is necessary for analysing the parliamentary debates, as I am interested in the arguments concerning civil liberties, although I accept that this distinction will not always be made by the MPs, and there may be a certain amount of overlap.

Agreeing on a distinction between civil liberties and human rights is straightforward, but identifying what the civil liberties are in Britain is more complex. Until relatively recently, British citizens had no formal document or piece of legislation that they could consult and which set out their liberties. Historically British civil liberties stem from the Magna Carta 1215, which established constitutional principles such as habeas corpus and a respect for legal precedent (common law), it was intended to limit the power of Kings and force their will to be bound by the law. In the modern day civil liberties are set out in the ECHR, which Britain had a significant hand in drafting, and then applied by the HRA, which Bogdanor (2009) describes as “making the ECHR in effect part of the fundamental law of the land. It brings the modalities of legal argument into the politics of the British state.” [2] 

Before the HRA the existence of civil liberties was still evident, depicted by the two popular assertions; ‘it’s a free country’ and ‘I know my rights’. Cox (1975) challenges these assertions as being hypocritical “since they constantly change in response to a curious political economy of supply and demand.” [3] Cox’s argument has lost some weight since the HRA, but still remains important to my research as my primary investigation focuses on Acts which fall either side of the HRA. The existence of these assertions would suggest that there was an element of protection provided for civil liberties, whether from Parliament or British political culture.

Unfortunately this review does not have the scope for assessing the full effectiveness of the HRA, but Lord Hoffman sees its impact as being exaggerated, and hopes that it will not diminish the sense of responsibility Parliament has shown in passing legislation affecting human rights. This view is propped up by the reality that Judges can do no more than declare a statute incompatible with the ECHR; there is no mechanism to make the law void. This weakness of the HRA and the absence of any improvements, such as an American style bill of rights, emphasizes Parliament’s centrality to the political system and the protection of civil liberties. Lord Hoffman doesn’t see this as a negative as we have entrusted our most fundamental liberties to Parliament before and it has not betrayed that trust. [4] My research will provide a deeper analysis of Parliament in this sense, by investigating the debates of two statutes concerning civil liberties.

The principle of parliamentary sovereignty is key to understanding British politics, when discussing this principle we are drawing from two main sources. The first conceptual source comes from the influential A.V. Dicey [5] , who defines parliamentary sovereignty in two parts. The first is known as the positive limb that “that parliament… has, under the English constitution, the right to make or unmake any law whatever” [6] this is achieved by a majority vote in favour of a particular bill in Parliament and then an approval by the Monarch. Irrespective of the bills contents it will become law, and there are no limits to what the contents may be. Furthermore the size of the majority passing the bill does not matter, it could be as little as one member and it would carry as much weight as that of a unanimously passed bill. The second; the negative limb, “that no person or body is recognised by the law of England as having a right to override or set aside the legislation of parliament,” [7] therefore the legality of an Act of Parliament can not be challenged in any British court, the will of Parliament expressed in statutes is higher than any other form of law. [8] 

It is useful to consider the sources on which the Diceyan theory rely and at the same time highlight the second source that explains parliamentary sovereignty; the political events of the Glorious Revolution. The 17th century was marred by the enduring struggle for power between the Monarchy and Parliament, which latter led to the Civil War. The resulting victor, the Parliamentarians, strove to cement their new position by introducing the Bill of Rights 1689, this Act did little for the rights of the individual, but instead introduced the sovereignty of parliament.

A criticism of the Diceyan theory is how can Parliament be considered sovereign if it cannot pass laws that are binding on its successors. Winterton [9] (1976) attempts to solve this problem, by offering a self-embracing theory of parliamentary sovereignty. This theory, argues that there are certain areas/values, which do become binding to its successors. These entrenched values imply that there are certain human principles that can never be changed. However as my research will reveal this entrenchment has not always been successful

The joining of the European Economic Community in 1973 has caused significant worries for aspects of the Diceyan theory of parliamentary sovereignty. EC law has had a direct impact on the negative limb as it is now possible for appeals to be heard in the EctHR, which would be able to turnover any decision made by a British court including the House of Lords, thus undermining the sovereignty of Parliament. A more general criticism of parliamentary sovereignty is that it is not fit for the modern day and is seen as embodying extreme majoritarianism and anti-pluralism. [10] Discussions of parliamentary sovereignty tend to offer either support or opposition, but they do not separate the legal formability from the political reality. It is false to say that Parliament could enact any law it wished because the House of Commons is elected, and the MPs would have to bear in mind the conscience of the electorate, in this sense it is worth considering the words of Lord Reid:

“It is often said that it would be unconstitutional for . . . Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean it is beyond the power of Parliament to do such things. If Parliament chose to do any of them, the courts could not hold the Act of Parliament invalid” [11] 

Drawing upon Lord Reid it is possible to acknowledge Parliaments role in protecting civil liberties. If the government attempted to introduce legislation removing the political rights of all those who were right-handed they would fail, such an illogical barefaced attack on personal freedoms would not be accepted. The sovereignty of parliament allows for any law to be passed but also rejected, the primary way in which this is achieved is through debate. Norton [12] (1990) provides a more in depth discussion of how this is achieved. He points out the virtues of the official opposition in withholding assent, highlighting the two resources that they have as, time and good reasons. The opposition can attempt to persuade fellow MPs that giving assent to the bill in question is a bad idea or they can consume time to delay the bill and disrupt the government’s parliamentary timetable. King (1974) [13] points out that time, is at best a nuisance and not lethal weapon. Norton fails to address the unlikelihood of the opposition presenting a unified stance against bills that concern security, as this is the most likely type of bill to contain freedom-curtailing measures. He further disregards the likelihood that opposition MPs will have different moral views on such a matter and therefore may not always oppose any potentially liberty-eroding bills. My research looks in closer depth the effectiveness of MPs in debating such bills.

The physical characteristics, procedural rules and etiquette of parliament are of importance when discussing its ability to debate issues. Ryle (2002) sees the chamber as an effective debating arena, but the traditional styles of debate, and rules that limit interruption and questioning afford ministers far too much protection and allow for important criticism to be sidestepped. Complaints are made about the shortness of time to debate, meaning that not all the MPs that wish to speak are given an opportunity to do so. [14] A positive aspect of parliamentary etiquette, documented by Silk (1987), is that government MPs do not use their majority to prevent debate by the opposition, as they one day will perform this role, giving rise to a traditional sense of British ‘fair play’. Such a different perspective is a good addition to the literature. However I will later show that this tradition has diminished and the government has in fact began to play dirty.

A different discourse is offered by Kanvanagh (2001), he points to the virtues of parliamentary committees, such as the JCHR, and their role in debating legislation. Kavanagh sees the benefits of committees in that party boundaries become blurred and the MPs are more focused on investigating the performance of the executive and protecting citizen rights than scoring points against one another, MPs come to see themselves as American Congressmen. Wadham (1999) et al [15] shares Kavanagh’s views and argues that the JCHR has had a significant influence on parliament, in particular on sensitive pieces of legislation such as the ATCSA. Norton disagrees, arguing that such committees are under resourced and have little influence. However as I will explain later the JCHR played an important role in the ATCSA debates.

Stone (2004) discuses the limitations of parliaments ability to protect civil liberties. He highlights incremental infringement, as one such limitation where Parliament accepts that one type of control is necessary and uses this to justify its application in another area, where in fact it may well cause a more significant infringement of liberty. A further inadequacy of Parliament’s ability to protect the liberties of the citizen (according to Stone) arises when it is panicked into legislating by an apparent emergency. A similar problem raises its head in relation to anti-terror laws, however Stone argues that the problem is not so much that it is decided that individual rights may have to give way to protect the population and control terrorists, but that the issue of civil liberties never arises. My research will offer quantitative evidence of the arguments put forward, concerning civil liberties, in such parliamentary proceedings.

In addition to the previous shortcomings of parliament in protecting civil liberties, it is important to consider the problem of executive dominance over parliament. The influential Sir William Blackstone thought that it would be “highly necessary for preserving the balance of the constitution that the executive power should be a branch, though not the whole, of the legislature. The total union of them… would be productive of a tyranny” [16] Parliament therefore holds a double responsibility; it creates and sustains the Government, but at the same time it needs to control that Government and prevent excessive growth of its power. This separation of powers however has been undermined by the executive, who as Gearty sees it, have “bustled through informally to seize almost total power,” [17] creating what Lord Hailsham coined as an “elective dictatorship.” Though not too much emphasis should be placed on the words of Hailsham as after his party gained power, he failed to build upon these words. Gearty and Ewing offer an historical account of how such a bustling was achieved and conclude that it roots lie with the emergence of large disciplined political parties in the 1860’s and 1870’s.

Certain influential PMs such as Gladstone and Disraeli, and in the modern context Thatcher and Blair were able to manage and influence their fellow party members with the sticks and carrots at their disposal, to translate their wishes into votes in parliament. The House of Lords is invariably referenced as the safeguard against such an action, but has been reduced to a mere irritant through the Parliament Acts. One MP warned of the dominance of the PM; “I said that this place [parliament] must never become the PMs poodle, unfortunately it has become so.” [18] 

Kingdom (1999) highlights the procedural methods in which the executive dominates parliament. He sees the introduction of standing orders in 1902 as having a significant effect. The standing orders enabled governments to dictate what subjects could be raised and for how long they could be discussed, dubbed ‘Balfour’s railway timetable’. [19] As a result various devices have been developed to aid the executive in passing legislation; closure motions, allowing a vote to be called without further discussion and the guillotine, which allows the government to stop a debate at a predetermined time [20] . A weakness of Kingdom’s study is that although he does give examples of when these devices have been implemented he does not back up his argument with empirical data on the frequency of their use.

Despite the dominance of the executive, MPs are not always prepared to tow the party line. Norton’s Dissention in the House of Commons [21] (1980) provides considerable quantitative data on intra-party dissent in the House of Commons. He observes that there has been a dramatic growth in party dissent in the House of Commons since 1970. Norton makes the interesting point that the three parliaments between 1970 and 1979 experienced on average dissents in excess of 20% in contrast to the previous parliaments, which averaged less than 10%. Norton furthers his study by contrasting this period of dissent, with the apparent growing levels of party discipline characterising the period. Although Norton’s work is valuable and of use for my own research, I would make one criticism that he places too much emphasis on the role of Edward Heath in encouraging dissention by MPs, thereby neglecting possible philosophical explanations for the levels of dissent.

Offering a more up to date account of the rebelliousness amongst MPs is Cowely [22] (date), who has not only written persuasive texts on the topic but also has a website documenting current backbench dissidents. As Norton, Cowley provides quantitative data of the number of ‘rebellions’ between 2001 and 2005. Cowley expands upon the work by Norton by classifying the severity of these rebellions; he documents 47 ‘major’ rebellions. However the way in which Cowley’s text stands out from the rest and can been seen as a valuable addition to the literature is its examination of the role of Whips, and the four techniques used to manage the party: compromise, sanctions, persuasion and inducements.

As briefly mentioned before the House of Lords is regarded as on of the checks upon executive dominance. The power of the House of Lords regarding ordinary legislation is set out in the Parliament Act 1911 and 1949. Within these acts it is documented that the House of Lords can delay most ordinary bills for up to one year and ‘money bills’ for up to a month. [23] However conventions limit the power of the Lords such as the Lord Sailsbury Convention, which states that the Lords will not intervene in the process of a bill proposed in the election manifesto of the wining party. This was based upon the premise that members of the Lords gained their position by hereditary peerages and were not elected and therefore had no right to interfere with the promises on which a party had been elected. After the introduction of the House of Lords Act 1999 such hereditary peers were removed and replaced with appointed Lords, setting the stage for a more active upper house. Russell and Cornes (2001) provide a useful comparison of the power of the House of Lords with the second chambers of 10 other democracies. They conclude that the House of Lords has moderate delaying powers in the international context. Whilst such a comparison is useful, it fails to address the important issue of the power relationship with the House of Commons.

This research makes the PTA and the ATCSA the focus of its investigation, given the events surrounding these statutes, but previous failings of parliament to protect citizens’ civil liberties have been documented before, giving rise to a steady erosion of civil liberties in the UK. Below I have listed some other acts of parliament, which have potentially infringed upon such liberties.

The British Nationality Act – critics argue that the motivation behind this act was to deny Hong Kong-born Chinese individuals the right of residency in the UK.

Public Order Act – Severely infringes the fundamental democratic right to freedom of the assembly, making it an offence to not give police sufficient notice (at least 6 days written notice) of a public procession and its intended time and route.

Police and Criminal Evidence Act 1984 – preventing people from travelling between N. Ireland and the rest of the UK

The Commonwealth Immigrants Act 1968 – introduced by Labour, was racially motivated; it was designed to keep out East African and Asians from the Commonwealth of Nations. The Labour cabinet member R.H.S. Crossman, acknowledged that the legislation would have been declared unconstitutional in any country with a codified constitution and a supreme court.

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