Unlike in Malaysia, there is an absence of codifiedconstitution in UK.
Therefore, the protection of civil liberties is deemed tobe not comprehensive and effective enough as rights provisions are usuallyincorporated in a Constitution. However, UK being part of the EuropeanConvention on Human Rights (herein after referred to as ‘ECHR’), hasincorporated the provisions of ECHR and passed Human Rights Act (hereinafterreferred to as ‘HRA’) in 1998. HRA grants rights to citizens nevertheless. The passing of HRA allows judges toplay their role in giving rights tocitizens easier and more straightforward without having to refer to common lawprecedents as there is already a concrete document that outlines the rights ofcitizens.
1 Through this, the protection of civilliberties is more effective because judges can give their judgment in favour ofcitizens based on HRA. For example, in the case of Catherine Zeta Jones v. Hello Magazine 2001,the magazine was to publish a series of photographs of Jones’ wedding.
Thecourt ruled that right to privacy has been given to Jones according to HRAdespite being a celebrity. The magazine lost the right to expression as weddingis of confidential matters. Moreover, judiciary could protectcivil liberties by carrying out judicial review. Judicial review is a processin the Supreme Courts to examine lawfulness of cases. For instance, in the caseof Christopher Alder,he died while in police custody. The police officers went on a trial formanslaughter but subsequently being acquitted. The case was appealed to theEuropean Court of Human Rights. The court then held that the misconduct of policeofficers was against Article 5 of ECHR.
Judges can also declare incompatibilityany acts which is ultra vires HRA. In the case of David Miranda, it was a provision under Schedule 7of Terrorism Act 2000 that travellers are allowed to be questioned to find outwhether they appear to be terrorists. The court decided that schedule 7, as inforce at the time of this incident, did not provide sufficient protectionagainst the examination of journalistic material as provided under ECHR. Inthis way, the judiciary’s ability to reverse executive action by ruling itbeyond its powers provides a very effective protection of liberties in the UK.2However, it must also be noted that UKupholds parliamentary supremacy instead of constitutional supremacy. Parliamentseems to hinder the function of judiciary wherein critics see the judiciarypower is too weak to protect civil liberties. Parliament legislate rulings andall rulings are binding on all bodies. If one ruling is not in favour of thegovernment, government can then pass a new act to avoid the ruling.
This can beillustrated by a famous UK human rights case – the Belmarsh case. This case was heard before theHouse of Lords. It was held that the indefinite detention of foreign prisonersin Belmarsh without trial under Section 23 of the Anti-terrorism, Crime andSecurity Act 2001 was incompatible with the European Convention on Human Rights.
The parliament then decided to replace Part 4 of ATCSA 2001 with the Preventionof Terrorism Act 2005 which allows anyone of any nationality to be subjected toa control order. This shows that without an entrench constitution, the erosionof civil liberties can easily happen. Other than that, courts can only beinvolved in protecting liberties via appeal. This means that the case must bechallenged or brought before a court to engage in its protective role. Judgescannot be pro-active to file a case examining the lawfulness of a case. Thus, alaw can stand for years before being called incompatible. For example, in Belmarsh case again, the casewas only brought before the court in 2004 although the ATCSA has established 3years back.
3This has weakened the ability of judiciary in protecting civil liberties asjudiciary plays a negative role.In addition to that, judges have nopower to strike down an act but only to declare incompatible to HRA. It meansthere is still likelihood the incompatible act would not be changed as it issubjected to the decision or Parliament.
This is because Parliamentary isalways supreme and cannot be challenged. According to A.V.
Dicey, ‘The principle of parliamentary sovereigntymeans neither more nor less than this, namely that Parliament has, under theEnglish constitution, the right to make or unmake any law whatever; and furtherthat no person or body is recognised by the law of England as having a right tooverride or set aside the legislation of Parliament.’4 Ina brief conclusion, the rights of citizens are effectively protected by HRA.However, the power of judiciary in interpreting the law is subjected to thesovereignty of Parliament which may erode the rights of citizens by passing newrulings.