The Human In The United Kingdom Law Constitutional Administrative Essay

Published Date: 02 Nov 2017

Besides the advent of the Magna Carta of 1215 was also the Bill of Right of 1689, an Act of Parliament after the "Glorious Revolution" this Act of Parliament gave access for the petitioning of the Monarch, the freedom from cruel punishment administered and also the freedom from fined without trial.

Accordingly, in 1774 an Act of Parliament was passed for free press for public information which was campaigned by John Wilkes and others. In 1918 [1] gave right to vote to women above 30 years, though it took another years for adult women to be given rights to vote. This took place at end of World War 1.

In the case of ROBERT V HOPWOOD [2] a certain council called the Metropolitan Borough made a decision to pay its workers a certain minimum amount of £4 a week no matter the gender differences, regardless of the type of job. The House of Lords stated their decision on the grounds that the council were being overly gratuitous, pending the cost of living Lord Atkin in his words stated that "the council would, in my view, fail in their duty if … [they] allowed themselves to be guided in preference by some eccentric principles of socialistic philanthropy, or by a feminist ambition to secure the equality of sexes in the matter of wages in the world of labour. It was further stated, that the district council had no discretion, unless it was provided for by an Act of Parliament.

Equal Pay Act [3] an Act of Parliament came into force and there was progress in the area of equal pay.

Also in 1948 after the horrors of World War II there was a "Universal Declaration of Human Rights", this has been the imperative agreements of decade’s fight of right of Human being. In the words of Winston Churchill in 1948, He stated that the New Europe:

"Must be positive force deriving its strength from our sense of common spiritual values. It is a dynamic expression of democratic faith based upon moral conceptions and inspired by a sense of mission. In the centre of our movement stands the idea of charter of Human Rights, guarded by freedom and sustained by law" [4] .

In 1950 [5] convention cannot be excluded in the historically factors that lead to a pronounced and concrete state of Human Rights in the United Kingdom before the advent of the Human Right Act [6] . After the event of World War II, the UK lawyers were a tool in the progress of the Convention, and UK endorsed it in 1951.

The UK Parliament were not relaxed, they proceeded in passing an Act in 1975 [7] on Sex Discrimination and Race Relation Act [8] , despite your gender and ethnic group. These Acts of Parliaments has portrayed a fact to the existence of Human Right in UK and the extent of its effectiveness.

The challenge to the transsexual case in the UK cannot be left out, considering the case of CORBETT V CORBETT [9] at this time the United Kingdom did not have a legalized legislation on transsexuals, Corbett made an attempt to nullify his marriage to a certain person called April who was a model, the English court had stated that post-operative transsexual was of the sex they were assigned to at birth. This did set a laid down precedent in the UK, those of the people who were involved in it and believed it to be legal realized that their marriage was invalid.

In the case of Rees v United Kingdom [10] a transsexual party who had gone through surgery and also changed his identity by title deed, claimed that the UK law was in violation of his Human Rights by virtue of Article 8 of right to privacy and also Article 12 on right to Marry of the European Convention on Human Right. And also laid claims of his Birth Certificate has been denied refusal of change of sex, from female to male, though his passports and other documents reflects him to be male not female. Though the courts rejected the claims and stated that the UK were not in violation of the Article 8 but it’s the duty of the National legislations to make laws governing this area of Article 12, but also went further to state that the certificate of birth was a document reflecting a child’s type of sex at birth.

After the advent of the Human Right Act [11] , the was a change, a new development on the area of Transsexual cases in the cases of GOODWIN V UNITED KINGDOM [12] the applicant a UK national alleged that she is a post-operative male to female transsexual, she stated that her right in Article 8 and 12 has been violated, she claimed that her National Identity states a different gender from her present person which is causing her embarrassment and humiliation at her work place, this has gender which is been stated on her National Identity has stopped her being married, her treatment in relation to employment and social security was being violated. It was held that her Human Right was violated, Article 8 of right to privacy was infringed and Article 12 as well.

Following the above ruling the UK legislation was passed to give effect to the case of transgender in the UK as stated in the Gender Recognition Act [13] , though this was given recognition after the incorporation of the Human Right Act 1998. That is to say that the UK did not give a legalized recognition to a transgender case until the 2004 Act was passed.

Before the advent of the Act [14] the case of MALONE V METROPOLITAN POLICE COMMISSIONER [15] cannot be ignored, this case was tried in the Crown Court, the Plaintiff was a tried for numbers of offences of being in possession of stolen property, He was an antique dealer and during the trial, the Prosecution counsel had stated that the plaintiff’s telephone had been tapped by the police on the warrant which was issued by the Secretary of State, this warrant was obtained by Police and dispatched to the Post Office which made a recording of every conversation of the Plaintiff, the Plaintiff alleged that this action constituted a breach of confidence, unlawful, trespass and also interferes with his Right to privacy. Though the Plaintiff issued a Writ of declaration on these, but Sir Robert Megarry dismissed his claims on the facts that there was no English Legislation on that.

Malone did not stop there, Malone proceeded to the Strasbourg as was stated and named MALONE v UK [16] on appeal of the phone tapping by the UK into Malone’s Privacy which he considered Unlawful, the European Court of Human Right stated that by virtue of Article 8 [17] the UK were in Breach of Malone’s Right to Privacy though the UK could not claim any form of Justification on the said Article of the ECHR. The court also proceeded in their verdict that "The Convention protects the community of men; man in our times has a need to preserve his identity, to refuse a total transparency of society, to maintain the privacy of his personality."

This verdict led to the enacting of Act of Parliament in 1985, the Interception of Communication Act. This Act was prompted by the Pressure of the Malone’s case with the UK and certainly not the common law principles, but it clarified legitimate right the Police have in tapping into ones phone.

The UK rights were effective to an extent but some were laid down by the legislation, some through case laws before the advent of the Human Right Act [18] . In considering the case of R V R [19] this concerns a rape case of husband and wife, the parties had a matrimonial difficulties and the wife left their house in 1989 to her parents’ and served the defendant with a notice of intending to divorce, the defendant did make communication on this as well. But one day, the defendant forced his way in the house of the parents and made an attempt to sexually assault the Plaintiff, the Plaintiff sustained some physical bodily harm during this process and the defendant was charge for rape of which he pleaded guilty to and was convicted. But the defendant made an appeal against his conviction. The House of Lords upheld the defendant’s conviction; they went further to overturn the matrimonial exceptions attached to rape cases. The House of Lords held that the wife had withdrawn her consent to sexual intercourse and also considered separated though not formally yet, since they both had an intentions of getting a divorce, any attempt of using force at this time is considered rape.

This case did establish the fact that the use of force by the husband without the wife’s did amount to rape. This also established the fact that before the advent of Human Right Act [20] the English laws were able to protect the right of a woman in her matrimonial home against every use of force by the husband.

Another instances is drawn from the case Hills v Chief Constable of West Yorkshire [21] in this case Jacqueline the daughter of Hill was the last victim of a certain Murderer Peter, Jacqueline Hill was the 13th victim, Mrs. Hill who happens to be Jacqueline’s mother claimed that the Chief Constable had been negligent in performing their duty, by not arresting the murderer before he killed the daughter, but the Defendant was applied for the claims to be struck out and that they owed the Plaintiff no duty of care. it was held that the police owed her daughter no duty of care and the police had a blanket immunity not to be held responsible on matters like that.

However this blanket immunity was address again by the European Courts of Human Right, on appeal which was stated in the case of OSMAN V UK [22] in this case, its ruling was given in 1998, but the Human Right Act 1998 came into force in 2000, the case lays emphasis on the police immunity which was curtailed by the court, the applicant is a British citizen who resides in London, the applicants being the wife and son of Osman had notified the police of threat posed by the individual Mr. Paul Paget-Lewis, during the shootout, it resulted in the death of the Mr. Osman and the applicants claimed that the police authorities were fully aware of the threat posed and did not perform their duty, though in the above case HILL [23] had stated the blanket immunity the police authorities have, but in this case the European Court of Human Right had stated that the applicants right of Article 6 of the European Convention of Human Right was violated, as the applicants were entitled to Fair Hearing. But Article 2 and 8 of the convention were not violated.

The Human Right in the UK was also effective in the area of free press before the advent of the HRA 1998, the case of the SUNDAY TIMES V UNITED KINGDOM [24] this case concerns the marketing of a certain drugs called "Thalidomide" which was mostly consumed by pregnant Women and they always give birth to deformed children, the Sunday Times decided to write about the occurrence and the happening and also help victims to get this situation resolved in the Court, these write ups do have the testing history, the marketing strategy and the manufacturer’s drugs. During this process the Attorney General of the State had sought an injunction to stop the publishing of this Article, the Attorney General stated that it contained the courts Contempt. The Sunday Times did not give up, Sunday Times proceeded to the European Court of Human Right and claimed that his Right of Freedom of Expression has been violated, by virtue of Article 10 of the European Convention of Human Right. The Court Held or concluded that truly the Sunday Times right has been breached.

The Court stated further that the only restriction of that Article 10(1) states that it is for the law 2 provide what is appropriate for a democratic society, it applies mostly to the maintenance of authority in the state and also to the impartial Judiciary. But where it concerns the interest of the public and help, restriction does not apply.

The human in the United Kingdom has been effective to an extent, until the when the UK became a member and signed to the European Convention on Human Right in 1951, This made it easy for the people in the UK to speak up and be heard when it comes to their right as a citizen, though the problem of approaching Strasbourg was always a case, due to its time consumed in getting ones case there, the expense of it was an understatement. The UK then thought it wise and necessary, to enact a new Legislation as a domestic law, incorporating the ECHR into this legislation, otherwise called the Human Right Act [25] 

Section 2 of the HRA 1998 "requires future courts to take into account any previous decision of the EctHR" for the purpose of Precedents which the courts are bound to follow. Section 3 of the HRA [26] also ‘requires the Legislation to be read, to give effect to the rights provided under the Convention".

With these Provisions the Human Right in the UK became more solidified and concrete, but before the advent of this HRA 1998, the human right in the UK was effective to an extent and to certain areas, unless approach and resources are there for one to go to Strasbourg to seek justice and fairness or Unless legislations were made by the Parliament to that effect in certain areas of rights, rights were always infringed.

However, looking at the case of Corporal Punishment in UK schools, this involves the act of striking students severally with a rod as punishment for committing an offence against the rules and principles laid down by the school. This case of corporal punishment was outlaw in the UK Parliament with its enforcement from 1987. This Corporal Punishment was banned in Private Schools in 1999 in England and Wales, as at 2000 Scotland had joined. Though the European Convention of Human Right, Article 3 "Prohibit torture or inhuman or degrading treatment or punishment", in the case of CAMPBELL AND COSAN [27] it concerns two boys from Scottish who parents were against belt to be given to them at school. One of the boys was never threatened of it, but his mother did not get assurance from the school stating that he would never be belted whatever the circumstances governing it in future, but the other boy was asked to be strapped but he refused and was suspended from school, the court held that the action did not amount to a breach of Article 3 of the ECHR but the court stated that the boys have the right to Education of which they were deprived of, and the "state failed to respect the Philosophical Conviction" which was contrary to Article 2 of the First Protocol of the ECHR.

In 1982 parents won the right to forbid school caning, but in the case of COSTELLO-ROBERTS V UNITED KINGDOM [28] the European Court of Human Right held that a boy of seven years to be given three "Whack" with a gym shoe over his trouser, did not amount to degrading or inhuman treatment.

On January 28th in 1997 the United Kingdom Parliament had a debate of reinstating Corporal Punishment in state schools after ten years of its ban in the UK, this was done by House of Common on the grounds that Corporal Punishment should be lawful if it is consented to by the parents. Though it failed.

In R V SECRETARY OF STATE FOR EDUCATION AND EMPLOYMENT and OTHERS ex parte WILLIAMSON AND OTHERS this case was brought by the group of Christian schools claiming the 1998 legislation on the ban of corporal Punishment has infringed their "Freedom of Belief" they claimed that naughty children were to spanked, their claim was dismissed and the Government and Parliament decision of 1998 to prohibit Corporal Punishment in all Schools.

The EAST AFRICAN ASIANS V UK [29] the restriction from the legislation in the Immigration Act of 1962 to those in possession of British passport in East Africa did cause prevention to those without parents nor grandparents or those neutralized in the UK from entering the UK. The EctHR held that it was contradictory to Article 3 of the ECHR and also leading to racial discrimination, which constituted an affront to human dignity.

These instances has justified the extent of Human Right in the UK before the advent of the HRA 1998, which came into force in 2000, this Act has clarified and contained those fundamental rights which are both civil and political to the liberal democracy society. Those rights that could not be upheld before the 1998 Act has been amended, for instance the Right to Life [30] is considered absolute in the UK, the death penalty was abolished in UK in 1965 except for treason and piracy, but in 1998 the UK had their totally abolished the Capital Punishment.

In conclusion, the Human Right in the UK has been effective since the history of the Magna Carta, natural justice were upheld in many instance listed above till the 1998 [31] Act, the last straw and a pronounced achievement before the 1998 Act came into force in 2000, was to abolish Capital Punishment Completely in UK in 1998.