A Welsh Constitution IX: Rights in the UK

(Title Image: © Copyright Brian Slater and licensed for reuse under Creative Commons Licence BY-SA-2.0)

The final four articles in this series will look at the cornerstone of any nation’s constitution – civil rights.

As with the state-building aspects (Part II), it’s worth taking a brief look at how rights developed before and after the foundation of the UK, how rights are protected in the UK Constitution as things currently stand and proposals for the future.

Magna Carta

While Magna Carta is probably one of the first instances of rights being formally defined in Europe. The Magna Carta isn’t a single document. Due to various disputes during the 13th and 14th centuries, it was ignored and re-negotiated several times between the reigning monarch and the gentry. Most of the clauses have been repealed. Only four clauses remain in effect. These include a guarantee of the independence of the Church (in England) and the freedoms of the City of London.

The two most important clauses still in effect are a right to not be imprisoned or stripped of property without legal due process and also a ban on selling, denying or delaying the application of justice. This was key to the development of the legal principle of habeas corpus – that the grounds of a person’s imprisonment can be challenged in court. Though this wasn’t enshrined in English law until 1679.

One of the more interesting aspects of Magna Carta from a Welsh perspective is that the original 1215 charter included clauses whereby the property or possessions of Welshmen – which had been unlawfully seized – would be returned, as well as clauses securing the release of Welsh hostages. What could possibly go wrong?

The Bill of Rights 1689

 

(Pic: brewminate.com) England being conquered by the Dutch.

There’s no point going into the full background because you probably learned it at school at some point: Henry VIII & Acts of Supremacy, the divine right of kings, English Civil War, Oliver Cromwell, The Restoration etc. Putting all that to one side, the event leading to the Bill of Rights was the Glorious Revolution.

Charles II died without a legitimate heir (despite leaving a long list of illegitimate children), so his brother ascended to the English/Scottish throne as James II/VII whilst being Catholic – which was a problem and sparked several rebellions.

When the English and Scottish parliaments refused to repeal anti-Catholic laws, he suspended both legislatures and attempted to pack the English Parliament with supporters – which didn’t go down too well on Great Britain but was welcomed in Ireland (which had been subject to a campaign of ethnic cleansing by Oliver Cromwell decades earlier).

The stadtholder of the Netherlands, William of Orange – Charles II’s protestant nephew and husband to James II/VII’s daughter, Mary (yes, they were cousins) – was invited by members of the English and Scottish parliaments to invade, which is all the more remarkable considering the Dutch were one of England’s rivals at the time.

Before the English Parliament would offer William the crown – as joint monarch with Mary – they wanted the rights of parliament to be guaranteed. This was a move away from an absolute monarchy with almost unlimited powers to a constitutional monarchy with clear boundaries (Part IVa).

These rights included parliamentary sovereignty (Part II), parliamentary privilege (absolute free speech for MPs in parliament itself), a ban on the monarch ignoring/suspending laws or levying taxes without parliament’s consent, a right for people to petition the monarch and a ban on cruel and unusual punishments. It also formally barred Catholics from the English throne – which remains in effect today.

Scotland – which, as suggested, retained an independent parliament (because the UK didn’t exist at the time) – passed the Claim of Right, which played a similar role there as the Bill of Rights in England(andWales). The Bill of Rights and Claim of Right both remain a part of UK constitutional law.

Emancipation

The 16th to 18th centuries was marked by sectarianism between protestants (and later nonconfirmists) and Catholics, brought about largely because of The Reformation as well as protestant minority rule and colonisation in Ireland.

With James II eventually pushed out of the way and humiliated at the Battle of the Boyne, Catholics were gradually disenfranchised and squeezed out of public life in the decades following the Glorious Revolution.

This presented serious problems. Great Britain was keen to secure a formal union with Ireland to stem rising Irish nationalism and that couldn’t happen without moves to lift sanctions on Catholics (and the growing nonconformist movement). That eventually happened in 1829 with the Roman Catholic Relief Act – a key step in guaranteeing freedom of religion (Keeping the Faith Part I, Part II), which by process eventually led to the Church of England being disestablished in predominantly nonconformist Wales in 1920.

The other great emancipation was the abolition of slavery. While the Atlantic slave trade is what we often think of when it comes to “slavery” there were other forms which existed including feudal serfdom and transportation to the colonies of the British Empire (for petty crimes) as indentured labourers.

While slavery wasn’t strictly legal in English law at the time – there were some protections for escaped slaves who made it to England – it wasn’t outlawed either.

At the start of the 19th Century, William Wilberforce began legislative moves to ban slavery. The first attempt in 1805 passed the House of Commons but was rejected in the Lords. A second Bill outlawing slavery in the British Empire was passed in 1807, punishable by fines. In 1833, slavery was completely outlawed and, ironically, became a crime punishable by transportation. In 1838, all remaining slaves in the British Empire were free.

That sounds all well and good, but large sums of money were paid out by the UK to slave-owners in compensation for loss of property – the equivalent of about £17billion today.

Despite slavery being “abolished” in pretty much every nation on the planet, it continues in different guises such as human trafficking, indentured labour (including the kafala system in some Arab countries – which is being gradually reformed and/or abolished), sex slavery, debt bondage and forced marriage.

Suffrage

Equally long and fraught with danger was the movement seeking to expand political rights. Wales, particularly the south, was a hotbed for Chartism – a social movement campaigning for all men to have the vote via a secret ballot. While Chartism as a movement failed – and was violently put down by the UK authorities in Newport in 1839 – changes did eventually come through the first Reform Acts.

While that was alright for some, it wasn’t until 1918 that the UK moved closer to granting voting rights to all adults. All men over the age of 21 were granted the vote in UK-wide elections, while property-owning women over the age of 30 were also granted the vote after a long campaign by the Suffragette movement – founded in 1903 by Emmeline Pankhurst and her daughters. While an important victory for women’s rights, it was still far short of universal suffrage.

In 1928, voting ages and requirements were equalised for men and women in local elections (GB only), the Northern Irish Parliament and UK Parliament elections.

Perhaps unbelievably, universal voting rights for Northern Irish local council elections weren’t in place until 1968 (they retained a property ownership requirement for both male and female voters – you can guess why) and the first election in which men and women across the UK could vote on entirely equal terms didn’t happen until 1973. As of 2021, 16-and-17-year olds will be able to vote in Welsh and Scottish local and national elections, but the UK Parliament, English and Northern Irish voting age will remain 18.

The European Convention on Human Rights (ECHR)

While there was a general awareness of rights before the Second World War those definitions differed greatly between nations.

Atrocities and attempted genocides have occurred throughout human history, but the Holocaust – the calculated industrialised slaughter of entire peoples – Japanese war crimes and firebombing by all sides crossed so many lines and boundaries as “crimes against humanity” that the United Nations drafted the Universal Declaration of Human Rights in 1948. While not a legal document in itself, the declaration helped define what “human rights” are and ensured that they applied equally to everyone.

The newly-formed Council of Europe wanted something with legal force so drafted the European Convention on Human Rights (ECHR) which would be enforced by a European Court of Human Rights. Every nation-state in Europe except Belarus, Kosovo and Vatican City is a party to the ECHR.

The original ECHR had 18 Articles (and additional Articles on the workings of the European Court). Over subsequent years, the Council of Europe added Protocols to help determine how the original Articles should be interpreted. Article 2’s Right to Life, for example, was eventually expanded upon in later Protocols to include a ban on capital punishment (more in Part X, see also: Life, Ethics & Independence VII: Capital Punishment).

The European Court of Human Rights, based in Strasbourg, presides over cases where Council of Europe member states are believed to have violated the ECHR. Each member state appoints one judge. The chances of a case getting to the court are slim as each application has to be judged on whether it’s admissible or not, while the case itself has to make a serious point in law or a point regarding the interpretation of the ECHR itself.

The court has made at least 555 judgements involving the UK, 131 of which were determined to be “high importance” cases. The court has ruled that the UK has breached rights in around 300 cases.

It’s worth stressing that the ECHR and European Court of Human Rights have nothing to do with the European Union and are, for now, largely unaffected by Brexit.

The Human Rights Act 1998 & Equality Act 2010

 

(Pic: British Institute of Human Rights)

See also: Equal Wales: Why Equal Rights?

The Human Rights Act (HRA) enshrined the ECHR in UK law, meaning human rights cases could be heard and remedied in UK courts without having to go to Strasbourg (which is perhaps why the number of ECHR cases involving the UK is relatively low).

The HRA also means the courts can state that UK laws are incompatible with the ECHR. Unlike many nations, due to parliamentary sovereignty the courts can’t strike down/invalidate laws (Acts) in the UK, though they can strike down secondary legislation (regulations and orders) which are usually made by the government rather than parliament.

While several equalities laws had been introduced down the years ensuring equal pay for women and measures against racism and disability discrimination, in 2010 the Equality Act brought it together into a single law for England, Scotland and Wales (not Northern Ireland for the most part).

The Equality Act protects against discrimination in private and public life in nine defining characteristics: age, disability, gender reassignment, marriage & civil partnership, pregnancy/maternity, race (which is defined as including nationality), religion/belief, sexual orientation and sex.

There are some exemptions where the Act’s provisions don’t apply, including certain single-sex and specialist services, religious and clerical offices, any circumstances where health and safety are a consideration, political candidate selection for under-represented groups and national security.

Across the UK, the Equalities & Human Rights Commission is responsible for enforcing and promoting equalities and human rights.

Although equalities is a non-devolved matter, the Welsh Government and Senedd have a general duty to uphold equalities laws in devolved policy areas. Unlike the UK Parliament, all legislation from the Senedd, Scottish Parliament and Northern Irish Assembly (despite the Act by and large not applying in Northern Ireland) has to be compatible with the HRA.

In some cases, equalities and rights in Wales have been strengthened to a greater extent as, or before, the rest of the UK. Wales enshrined the UN Declaration on the Rights of the Child in Welsh law in 2011, established both Children’s and Older Person’s commissioners, enhanced advocacy services through the Social Services & Wellbeing Act 2014, passed the Wellbeing of Future Generations Act (Part XI) and has taken steps to address human trafficking.

That doesn’t mean Wales has a squeaky clean record on rights – the emerging issue being the misapplication of virus testing in care homes during the coronavirus pandemic, which may result in the Welsh Government being referred to the Equalities & Human Rights Commission at some point.

A “British Bill of Rights”?

The Human Rights Act has come under criticism – mainly from the Conservatives and the right-wing press – for what’s perceived to be excessive granting of rights or abuse of natural justice. Many concerns stem from people using human rights laws to contest an issue after committing crimes or actions against the state (i.e. terror suspects).

The usual story would be something like a burglar using human rights laws to sue the police or a homeowner if they’re injured whilst breaking into someone’s house. Another stereotypical example would be celebrities challenging a tabloid newspaper on privacy grounds because they’ve been caught masturbating whilst dressed as a dinosaur or something.

Human rights which, I think it goes without saying, are supposed to apply to everyone equally quickly become framed as “Me Hooman rights”.

As such, for several years now the Conservatives have proposed repealing the Human Rights Act (possibly even withdrawing from the ECHR) and replacing it with a so-called British Bill of Rights drafted by the UK Parliament. In essence, this will mean MPs and their special advisors will decide what rights you’ll be allowed to have whilst being able to change them on a whim because of parliamentary sovereignty (Part II).

The plans were dropped during David Cameron’s premiership because it proved to be far more difficult and time-consuming than his government was expecting. Since then, establishing a commission to consider democracy and human rights was included in the 2019 Conservative manifesto.

While it’s true that the UK Parliament has passed laws which have enhanced rights – same-sex marriage, for instance – the UK’s historic track record when it comes to human rights at home and abroad could be described as patchy: crimes of empire, crimes of the British military, internment, secret trials, misuse of anti-terror laws, welfare reform and the disabled, prison overcrowding, forced displacement, racial profiling, organised child sex abuse and human trafficking to name just a few.

Although I’d be more than happy go through historic and present human rights abuses committed in and on behalf of Wales, EnglandandWales (the “British Empire” as a concept was something the Welsh fully bought into) and the UK, for the sake of brevity (ha) I decided to cut it – though I’ll inevitably return to some of them in later pieces.

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