HUMAN
RIGHTS
AND
CIVIL
LIBERTIES
Historical
protection
of
LIBERTIES
under
English
law:
• Blackstone:
the
constitution
protects
3
pillars
of
liberty
o Personal
security
o Personal
liberty
o Private
property
• Locke:
social
contract
theory
o Mutual
preservation
of
their
lives,
liberties
and
estates
• Dicey:
rule
of
law
o No
one
can
be
punished
except
for
distinct
breach
of
law
o All
are
equal
before
the
law
–
formal
equality
o Constitution
arises
from
the
law
of
the
land
and
individuals
• These
traditional
safeguards
to
liberty
contrast
the
modern
statements
of
rights
o Core
to
British
liberty-‐
the
fewer
laws
we
have
the
more
liberty
o Rigour
of
excessive
modern
law
Basic
principle
of
the
common
law
on
rights:
• protection
of
liberties
• everything
is
permitted
unless
expressly
prohibited
–
scope
of
lawful
conduct
as
a
function
of
prohibitions
and
isn’t
fixed
• residual
idea
of
liberty
• constant
risk
of
erosion
• supported
by
availabilities
of
remedies
rather
than
rights
• very
weak
in
face
of
parliamentary
sovereignty
Cases
Pre-‐HRA:
• Entick
v
Carrington
o Sued
for
unlawful
entry,
search
and
seizure
to
be
remedied
o Dealt
with
the
government
as
an
individual
o Didn’t
recognize
rights
–
the
wrong
here
was
trespass
of
property
o Nowadays
would
be
breach
of
privacy
• Beatty
v
Gillbanks
o Can
only
prevent
the
salvation
army
from
marching
if
the
law
prohibits
even
if
know
that
the
skeleton
army
would
cause
riots
because
of
this
–
acting
within
the
limits
of
the
law
o Residual
point
–
not
protected
by
rights
but
remedies
o Nowadays
freedom
to
assemble
• Malone
v
MPC/UK
o Tapping
telephones
did
not
allow
redress
because
there
was
no
trespass
on
his
property
/
common
law
didn’t
protect
people’s
privacy
–
appeal
to
ECtHR
o Was
a
breach
of
Article
8,
Parliament
passed
an
Act
in
1985
subsequently
• ex
p
Brind
[1991]
o ECHR
was
not
part
of
UK
law
then
so
could
not
be
relied
upon
o Can
be
used
to
assist
in
interpreting
ambiguous
statute
o Refused
to
go
directly
against
government
intention
and
rely
on
ECHR
law
‘through
the
back
door’
when
government
has
refused
to
incorporate
it
‘through
the
front
door’
RIGHTS
AND
CIVIL
LIBERTIES
Historical
protection
of
LIBERTIES
under
English
law:
• Blackstone:
the
constitution
protects
3
pillars
of
liberty
o Personal
security
o Personal
liberty
o Private
property
• Locke:
social
contract
theory
o Mutual
preservation
of
their
lives,
liberties
and
estates
• Dicey:
rule
of
law
o No
one
can
be
punished
except
for
distinct
breach
of
law
o All
are
equal
before
the
law
–
formal
equality
o Constitution
arises
from
the
law
of
the
land
and
individuals
• These
traditional
safeguards
to
liberty
contrast
the
modern
statements
of
rights
o Core
to
British
liberty-‐
the
fewer
laws
we
have
the
more
liberty
o Rigour
of
excessive
modern
law
Basic
principle
of
the
common
law
on
rights:
• protection
of
liberties
• everything
is
permitted
unless
expressly
prohibited
–
scope
of
lawful
conduct
as
a
function
of
prohibitions
and
isn’t
fixed
• residual
idea
of
liberty
• constant
risk
of
erosion
• supported
by
availabilities
of
remedies
rather
than
rights
• very
weak
in
face
of
parliamentary
sovereignty
Cases
Pre-‐HRA:
• Entick
v
Carrington
o Sued
for
unlawful
entry,
search
and
seizure
to
be
remedied
o Dealt
with
the
government
as
an
individual
o Didn’t
recognize
rights
–
the
wrong
here
was
trespass
of
property
o Nowadays
would
be
breach
of
privacy
• Beatty
v
Gillbanks
o Can
only
prevent
the
salvation
army
from
marching
if
the
law
prohibits
even
if
know
that
the
skeleton
army
would
cause
riots
because
of
this
–
acting
within
the
limits
of
the
law
o Residual
point
–
not
protected
by
rights
but
remedies
o Nowadays
freedom
to
assemble
• Malone
v
MPC/UK
o Tapping
telephones
did
not
allow
redress
because
there
was
no
trespass
on
his
property
/
common
law
didn’t
protect
people’s
privacy
–
appeal
to
ECtHR
o Was
a
breach
of
Article
8,
Parliament
passed
an
Act
in
1985
subsequently
• ex
p
Brind
[1991]
o ECHR
was
not
part
of
UK
law
then
so
could
not
be
relied
upon
o Can
be
used
to
assist
in
interpreting
ambiguous
statute
o Refused
to
go
directly
against
government
intention
and
rely
on
ECHR
law
‘through
the
back
door’
when
government
has
refused
to
incorporate
it
‘through
the
front
door’
