Residual Rights & Freedoms

The UK courts have developed key rights and freedoms over the past few centuries, independent of Parliament. These rights and freedoms support many of the points included in the basic definition of the Rule of Law, but also fed into Lord Bingham’s more detailed definition of the Rule of Law.

The development of these rights and freedoms by judges is, of course, controversial – the Judiciary are not elected, so why should they have a say on our rights, but for the Rule of Law? Many of these rights and freedoms have become the foundation of the UK’s modern liberal democracy, and were adopted within the European Convention on Human Rights (“the ECHR”).

You will recall looking at the cases of Entick v Carrington (in 1765 the court found a government minister could not issue an arrest warrant without legal authority) and Prohibitions Del Roy (in 1607 the court found that the King could not decide legal disputes), but some further key examples of fundamental rights are set out below:

• The Right to a Fair Hearing – this is now covered by Article 6 of the ECHR, part of UK law since the Human Rights Act 1998, as you will see, but in the UK this right developed prior to the ECHR through case law ie the decisions of judges.
• Parliamentary Supremacy – the UK Parliament is “supreme” because it includes the elected House of Commons, Members of Parliament being the elected representatives of the people. Judges have supported democracy by backing up this principle in cases such as Edinburgh & Dalkeith Railway Co v Wauchope from 1842 ((1842) 8 Cl & F 710) – once Parliament has passed an Act of Parliament, the courts cannot challenge that Act.
• Habeas Corpus & Individual Liberty – this is now covered by Article 5 of the ECHR, but again, this right developed through case law some time before the ECHR. An important example is the case of A and others v Secretary of State for the Home Department from 2005 ([2005] 2 AC 68) – the Anti-terrorism, Crime and Security Act 2001 permitted foreign nationals suspected of terrorist activities to be detained without trial indefinitely. This Act was passed by Parliament, but the result was inherently in breach of the Rule of Law in that all affected persons were not treated equally, foreign nationals being treated differently to UK nationals. The court could not overturn the Act, due to Parliamentary Supremacy, but did determine that any public body in the UK imposing an indefinite sentence would be in breach of Article 5 of the ECHR, and would therefore be subject to judicial review of it’s actions.