Human Rights Protection in the UK

Question 1

Although the enactment of the Human Rights Act 1998 (HRA 1998) has been considered as an important landmark in the human rights protection regime of the UK, the country already had existing legal protections for civil rights and freedoms in common law and statutes. The HRA 1998 is significant for the implementation of the rights under the European Convention on Human Rights (ECHR), and for the impact that this had on the constitutional law of the UK. The HRA 1998 is the first instance of a Bill of Rights in UK law, making it a crucial topic for law dissertation help. However, as this essay will reveal, there were already protections of human rights under the common law and statutes despite there being no written Bill of Rights prior to the HRA 1998; however, the enactment of the HRA 1998 led to the strengthening of the protections.

The concept of liberty or freedoms of the individual has been recognised by the common law long before the HRA 1998 was enacted. Dicey has mentioned that principles related to personal freedom “have long prevailed in England. Similar observations are made by Ivor Jennings. Jennings also notes that the fact that England did not have a written Bill of Rights actually went to strengthen the protection of the law for individual liberties because Bill of Rights can contain restrictions which makes the rights less effective. In Entice v Carrington, the court has held that individuals have as much liberties as are not expressly restricted by the law, thereby stating that the concept of liberties in English law is residual in nature. This concept was explained more recently in Malone v Metropolitan Police Commissioner with the court observing that everything is permissible except that which is expressly barred. Nevertheless, common law did protect civil rights and liberties as is clear from a number of authorities. In Ashby v White, the court held that a public official cannot interfere with right to vote. In Armory v Delamirie, court ruled on the right to property over found objects.The right against slavery was recognised in R v Knowles, ex parte Somersett. In Bird v Jones, the court recognised the right to freedom of movement. These cases clearly indicate that the common law protected certain civil rights and liberties of the individual from a very early period.

However, the criticism of the residual approach to rights and liberties is that these were not constitutionally protected and could be restricted to any extent by the state as there was no Bill of Rights. Therefore, it can be said that while the concept of liberty was recognised in the common law, it was a negative concept till the HRA 1998 was enacted. Dicey explained the absence of a Bill of Rights as an idea that was alien to English thought, because freedom of person is not a special privilege but the outcome of the ordinary law of the land enforced by the courts, thereby indicating that the law of the land already supported the idea of civil

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1. Gary Slapper and David Kelly, The English Legal System (Oxon: Routledge 2009) 24.
2. Alastair Mowbray, Cases, Materials and Commentary on the European Convention on Human Rights (Oxford University Press 2012).
3. Ibid.
4. Albert Dicey, Introduction to the Study of the Law of the Constitution (London: McMillan 1959) 206.
5. Ivor Jennings, The Law and the Constitution (University of London Press) 260.
6. Ibid, 257-9.
7. Entice v Carrington [1765] 19 St. Tr. 1029.
8. Malone v Metropolitan Police Commissioner [1979] Ch 344.
9. Ashby v White (1703) 1 Sm LC (13th Edn) 253.
10. Armory v Delamirie (1722) K.B., 1 Strange 505, 93 ER 664.
11. R v Knowles, ex parte Somersett (1772) 20 State Tr 1.
12. Bird v Jones (1845) 7 QB 742.
13. Anthony Lester, ‘Human Rights and British Constitution’ in Jeffery Jowell and Dawn Oliver (eds.), The Changing Constitution (Clarendon Press 1994).

rights and liberties of the individual. Indeed, the Halsbury Laws of England states that the right to personal liberty and immunity from wrongful detention is enshrined in the Magna Carta and is enforceable by the writ of habeas corpus and actions for false imprisonment. The right to personal freedom in English law has traditionally been related to the right against illegal imprisonment, arrest, or other physical coercion and this goes back to the protections afforded under the Magna Carta in the 13th century. Over a period of time, other statutory safeguards were created, notable amongst them is the Bill of Rights of 1689, which established Parliament’s supremacy over the Crown and established free elections to the Commons, and freedoms from cruel or unusual punishment or arbitrary arrest. Another important legislation was the Habeas Corpus Act 1679, which provided safeguards against unlawful imprisonment. Statutory protections of civil rights and liberties can be found in more recent legislations, notably, due process rights of those who are arrested to detained are protected under the Police and Criminal Evidence Act 1984. However, because there was no Bill of Rights in the nature of the HRA 1998, state could also restrict rights to a great extent as it did during the first and second World Wars. In that context, the HRA 1998 has definitely strengthened the human rights protection in the UK.

To conclude, the protection of human rights and civil liberties was provided to an extent in the common law and statutes but liberty was treated as a residual concept, which is negative in nature. After the passage of the HRA 1998, the protection of liberty is definitely strengthened because rights cannot be restricted save under the provisions of HRA 1998. This makes for more effective protection of civil rights and liberties. However, it has to be accepted that common law responded to protection of human rights as early as 18th century.

Question 2

The issue that arises in this scenario is whether Usman’s extradition to Belastan can be challenged under the European Convention on Human Rights (ECHR). The relevant articles of the ECHR that are engaged in this issue are Articles 3, and 8 of the ECHR.

Article 3 relates to the protection of right to life and prohibition of torture and degrading treatment of the individual. These rights are engaged in a situation where an individual is being deported or extradited to a country where he faces a threat to life or security or faces threat of torture. In such cases, the European Court of Human Rights (ECtHR) is likely to decide that the extradition of the individual under the circumstances violates these rights. The case of Chahal v the United Kingdom is relevant in this discussion. In this case, the applicant was to be deported to India. In India, the individual had been involved in the Sikh separatist movement and there were still some criminal proceedings that could be taken against him for this involvement as well as likelihood of torture in detention. The European Commission decided that if UK deported the applicant to India, his rights under Article 3 would be violated. In another case, Soering v United Kingdom, the court held that the extradition of a German national to the United States where he was to be tried for capital murder would violate the applicant’s rights under Article 3. In AB v Council of State, the

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14. Dicey, supra n 4.
15. Halsbury Laws of England volume 8 (4th edition, Butterworths 1974) para 832.
16. Colm O’Cinneide, ‘Human Rights and the UK Constitution’ in Jeffery Jowell, Dawn Oliver and Colm O’Cinneide (eds.), The Changing Constitution (Oxford University Press 2015).
17. Ibid.
18. Ibid.
19. Chahal v United Kingdom (1996) 23 EHRR 413.
20. Soering v United Kingdom 161 Eur. Ct. H.R. (ser. A) (1989).

court held that the applicant could not be deported to a country where the applicant had reasonable cause to believe that he could be persecuted.

Under both these cases, the offence of the applicant for which that person could be tried in the other country is not relevant, what was relevant for the courts was that the applicant could be exposed to torture or degrading treatment in that country. In Chahal, the court specifically noted that the prohibition of inhumane and degrading treatment is absolute in nature and works irrespective of the conduct of the applicant.

Article 8 of the ECHR protects family and private life rights. The rights under Article 8 relating to family rights have been widely interpreted by the ECtHR, which held in one case that private life includes “the totality of social ties between migrants and the community in which they live.” Primary consideration is given to family life as evident from a number of cases in which the courts in the UK as well as the ECtHR have held in favour of applicants; in Al-Nashif, the ECtHR held that Article 8 protections apply even where the state may show national security as the reason for deportation; in CG v United Kingdom, the court allowed social need to be shown as a reason for protection under Article 8. Where applicants have family and children, the courts tend to be sensitive to the need to maintain bonds or ensure benefit of the children, as was evident in ZH(Tanzania), in which the court held that primary consideration has to be given to the best interests of the child. In EB (Kosovo) v SSHD, it was held that it is not reasonable to break the bonds between two spouses and their child by requiring one spouse to leave the UK, while the other remained behind. In Muse v ECO, it was held that it is harsh to expect applicants with family to move to countries where they may face hostile environment. These cases indicate that courts are likely to take a more flexible approach to family rights under Article 8 especially where children are involved.



In the present case, Belastan has reported outbreaks of violence between Padaks and the Hundies. As the Padaks are the largest ethnic group and the political party which represents them is currently in government, there are justifiable concerns that as a Hundie, Usman may not get just treatment because even the United Nations’ observers have reported that the PNP uses national police force to intimidate Hundies. Usman faces charges of bribery and corruption, and if he is convicted then his right hand will be cut off in punishment. As a critic of PNP, there are justifiable reasons to believe that the charges against him are based on evidence obtained through the torture of other Hundies. Therefore, applying the principles of Chahal and Soering, it can be argued that extradition of Usman violates the rights under Article 3, particularly with reference to the punishment of cutting of hands. Regarding Article 8, Usman is likely to be protected as the jurisprudence discussed above shows that courts are likely to avoid deportation of individuals if it means breaking their familial and social bonds, or deporting entire families where they would be placed in an hostile environment. Usman is married to Helen and they have two infant children. Usman’s wife and children are British. Usman himself is a full-time employee of a university and has an extensive social network in the UK and no close family members in Belastan. Under the jurisprudence of the Article 8, the totality of social ties between migrants and the community in which they live will be considered to allow Usman to remain in the UK. Moreover, the jurisprudence also does not

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21. AB v Council of State No. 396695, Judgment of 8 February, 2017.
22. Chahal v United Kingdom (1996) 23 EHRR 413.
23. Maslov v Austria, [2008] ECHR 546.
24. Al-Nashif v Bulgaria (App. 50963/99), (2003) 36 EHRR 655.
25. CG and others v United Kingdom, (App. 1365/07) 24 April 2008.
26. ZH(Tanzania) v Secretary of State for Home Department [2011] UKSC 4.
27. EB (Kosovo) v SSHD [2008] UKHL 41.
28. Muse and others v ECO [2012] EWCA Civ 10.

support breaking up of families and emphasises on the best interests of the children. Considering all these points, it is concluded that Usman has possible remedies against the extradition order.

Cases

AB v Council of State No. 396695, Judgment of 8 February, 2017.

Al-Nashif v Bulgaria (App. 50963/99), (2003) 36 EHRR 655.

Armory v Delamirie (1722) K.B., 1 Strange 505, 93 ER 664.

Ashby v White (1703) 1 Sm LC (13th Edn) 253.

Bird v Jones (1845) 7 QB 742.

CG and others v United Kingdom, (App. 1365/07) 24 April 2008.

Chahal v United Kingdom (1996) 23 EHRR 413.

EB (Kosovo) v SSHD [2008] UKHL 41.

Entice v Carrington [1765] 19 St. Tr. 1029.

Malone v Metropolitan Police Commissioner [1979] Ch 344.

Maslov v Austria, [2008] ECHR 546.

Muse and others v ECO [2012] EWCA Civ 10.

R v Knowles, ex parte Somersett (1772) 20 State Tr 1.

Soering v United Kingdom 161 Eur. Ct. H.R. (ser. A) (1989).

ZH(Tanzania) v Secretary of State for Home Department [2011] U.K.S.C. 4.

Books

Dicey A, Introduction to the Study of the Law of the Constitution (London: McMillan 1959).

Jennings I, The Law and the Constitution (University of London Press).

Lester A, ‘Human Rights and British Constitution’ in Jeffery Jowell and Dawn Oliver (eds.), The Changing Constitution (Clarendon Press 1994).

Mowbray A, Cases, Materials and Commentary on the European Convention on Human Rights (Oxford University Press 2012).

Slapper G and David Kelly, The English Legal System (Oxon: Routledge 2009).

Halsbury Laws of England volume 8 (4th edition, Butterworths 1974).

O’Cinneide C, ‘Human Rights and the UK Constitution’ in Jeffery Jowell, Dawn Oliver and Colm O’Cinneide (eds.), The Changing Constitution (Oxford University Press 2015).