Fundamental Rights

This is a paper I wrote in 2005 for my LLM but never submitted it.

Fundamental rights are, arguably, the single most important aspect of a successful democratic society. Without them the general public's freedom would be restricted to such an extent that a peaceful existence would become almost impossible. However, although they are common to all democracies, this certainly does not mean that they are subject to the same treatment the world over. As I will illustrate, the way in which England and the US treat fundamental rights has general similarities but is often vastly different when it comes to specific branches and settling individual cases.

To begin with it is vital to point out how each country's code on fundamental rights came about. In America fundamental rights are set out in a written constitution, formed in 1787 after the American revolution. At this time there was a feeling of uncertainty in the air and the American citizens were anxious to see their rights laid out before them. The constitution was formed, exactly for this purpose. Americans feel much more secure knowing that they can call on the constitution at any time and it will back them up (if they are in the right) without the risk of repeal or argument. However in England we have no such written constitution for the simple reason that we have never had a major revolution in which the people have demanded such a document. Although some may point to the magna carta and the Bill of Rights 1689 (which deals more with the relationship between the crown and parliament) these can both be repealed. In England we take what is known as a 'residual' approach to fundamental rights. This means that rather than having a series of rights laid out before us, we are free to do anything as long as there is no law forbidding it. This is a crucial difference between English and American fundamental rights.

In England the question of human rights was brought up in the early case of Entick v Carrington (1765). Here it was held that an accused person had the right to know of what he was accused if the crown decided to issue him with a search warrant. Lord Camden said, in judgement, that this was done 'in pursuance of our traditional role to protect the liberty of the individual.' This case demonstrates clearly that people in this country have always demanded rights and that often judges have recognised the existence of such rights.

However one point that is particularly striking when it comes to the English approach to fundamental rights is the apparent unwillingness of the courts to handle such matters and especially to create laws and new rights. If ever English judges are in any doubt on these matters it seems they pass the buck back to parliament. The case of Malone v Metropolitan Police Commissioner [1979] is a prime example. In this case the judges expressed their unwillingness to get involved in such areas where no legislation exists. Megarry VC pointed out that, 'it is no function of the courts to legislate in a new field. The extension of the existing laws and principles is one thing, the creation of an altogether new right is another.' This same unwillingness to form new rights was demonstrated in Airedale N.H.S. Trust v Bland [1993]. Although the House of Lords passed judgement in this case and created a new right they did so with hesitation and stated that parliament needed to pass wider legislation on the subject.

When we look to US law however we see little evidence of an unwillingness to create new rights. Americans seem much more zealous on the issue of fundamental rights than us and always kick up a fuss if they think their rights are being impeached. In the case of Roe v Wade (1973) the supreme court had no hesitation in creating a new law on the right to abortion. It decided that a right to privacy existed here and that the court should protect individual rights. The same approach was taken in the case of Webster v Reproductive Health Services (1989). 

Close scrutiny of the law of public order reveals even greater differences in the two countries' approach to fundamental rights. Compare, for instance, the decisions in the US case of Brandenburg v Ohio (1969) and the English case of Jordan v Burgoyne [1963]. The first of these cases involved a Klu Klux Klan rally which attacked Negroes and Jews. It was held that this was not illegal as it presented no 'clear and present danger.' In judgement it was said by Douglas J that 'the government has no power to invade the sanctuary of belief or conscience.' However in the second case, which involved a neo-nazi making a speech, the English judges went the opposite way to the Americans and decided this was a punishable offence. The difference in the two judgements, on what appear to be similar cases, shows quite clearly the importance Americans place on freedom of speech.

This brings me on to the point of balancing interests. In America nothing seems more important to the judges and the general public than the freedom from essaybank.co.uk of speech. To them it epitomises all that makes America great. We even hear the words 'land of the free' in their national anthem. On the other hand we often see English judges getting involved in a balancing of interests. They often try to balance a particular right that a member of the public may have to do or say something with the rights that the government or they themselves have over the public. It must be said that more often than not they decide in favour of themselves or the government. This is clearly demonstrated in the case of A.G. v Times Newspapers (1973). In this case it was decided that respect for the courts outweighed freedom of speech. This decision was severely criticised in Sunday Times v UK (1979) when the European court decided that the English had gone too far. There can be little doubt which way this case would have gone in an American court.

To conclude this section of the essay it seems clear that the Americans, put simply, have more fundamental rights than the English. The examples I have given are a small portion of those available. Freedom of speech, as mentioned above, is subject to far more stringent restraints in this country than in America. We also have no privacy laws as they do in America. The list goes on. It seems that in the field of fundamental rights England takes an archaic and even arrogant approach and lies years behind the Americans and indeed other European countries. However, having said that, I personally do not feel that this is any great disadvantage to the 'average person' living in this country and few people would claim that we are restricted to any great extent in what we say or do. Any such restrictions placed upon us seem to be for our own good and the good of the country.

The mention of a balancing of interests and the Sunday Times case, above, brings me nicely on to the question of the effect of the European Convention on Human Rights. The convention is a treaty, signed by 23 European countries in 1950, which sets out, in numerous Articles, general fundamental rights. However as it is only a treaty it has not been incorporated into English law and as such is not binding. It is used by English judges for two main purposes. The first of these is to clarify ambiguities in English law. However, as was demonstrated in A.G. v Guardian Newspapers [1987], conflicting judges can find parts of the Convention to support their views. Lord Templeman in this case took up the viewpoint of banning Spycatcher 'in the interests of national security' whereas Lord Bridge pointed to Article 10 and freedom of speech. The second purpose is to help develop the common law. This was shown in the case of Secretary of State for Defence v Guardian Newspapers [1985] in which the judges used the convention to create a new law concerning media disclosure of sources.

However the judges are not always so keen to follow the convention. In the case of Brind [1991] they actually went against it. This case concerned the Home Secretary's banning of live interviews with IRA supporters. It was argued that although this was legal under English law it was contrary to article 10 of the convention. The judges did not disagree with this argument but said that English law was clear and that it would not be overruled. They demonstrated quite clearly their scepticism of 'foreign' law and that they are above every one else in thinking that they know best. Lord Acker stated, 'if the Secretary of State was obliged to have proper regard to the convention...this inevitably would result in incorporating the Convention into English domestic law by the back door...The treaty, not having been incorporated into English law, cannot be a source of rights and obligations', and this it seems is the way the judges want it to remain. They certainly do not like being told how to run the English judicial system by 'foreigners' and are thus cautious not to let the convention slip in unnoticed. The decision in Brind does seem rather over the top however. In recent weeks we have seen interviews, with the likes of Gerry Adams, shown on television without the sound and it does not seem to me as though it would have any detrimental effect on the public to show what people like this have to say, however malevolent it may be. In fact people should be able to hear this and then decide themselves what to think, without the Home Secretary deciding for them. Maybe in this case the English judges should have listened to 'foreign' advice. 

To conclude it would seem that English judges seem reluctant to follow the Convention, especially when their own law is clear cut. In fact there has not been a single case in which the convention has been crucial to the judgement. There is evidence that English judges may be coming round to a European way of thinking but for the moment it seems that they are set on the idea that English is best and a 'foreign' influence must only play a small part in their reasoning.