From an essay originally entitled 'By what means and how effectively are civil rights protected in the USA and UK?'
Introduction
While the terms 'civil rights' and 'civil liberties' are often used interchangeably, a distinction may be recognised between the two.
Essentially, these liberties fall under two categories: the right to do or have something, such as the right to assembly or privacy, and freedom from things, such as freedom from oppression, arbitrary arrest or imprisonment without trial.
A further distinction may be made between ‘civil rights’ and ‘human rights’:
- Civil rights are those conferred upon a person by virtue of their citizenship, and are protected by law.
- Human rights are those rights which, if they do indeed exist, are universal even when not protected by law.
In the USA, this second distinction is not generally made, as it is thought that the Constitution transforms all human rights into civil rights, entrenched and protected. It is often said that the hallmark of a liberal, democratic state is its inclination to uphold the rights and liberties of its citizens, and a state which fails to do so is deplorable; for example, movements in the USSR to uphold rights guaranteed under the written constitution were treated as subversive, even ‘anti-socialist’.
There exist in the USA a number of measures which claim to protect and uphold civil rights and liberties. Similarly, while the UK does not have a codified constitution, being traditionally reliant on what the constitutional theorist Albert V. Dicey labelled ‘the three pillars of liberty’—i.e. Parliament, the courts and a culture of liberty—it also has a number of means intended to protect the rights of citizens. However, these measures are only truly effective when full advantage is taken of them.
Means of protection
Constitutional protection
In the USA, the Constitution—through the Bill of Rights and various Acts of Congress—claims to outline and protect even the most fundamental of civil rights; most Western democracies have such a constitution, which defines the relationship between the state and the individual. However, examples such as that detailed above with the ‘anti-socialist’ attempts to uphold constitutionally granted rights in the USSR demonstrate that a constitution in itself is not a guarantee that such rights will be honoured: the government must recognise and uphold constitutional measures if civil rights are to be effectively protected. In the USA, the majority of Americans are aware of their liberties and rights, even if at a rather basic level: citizens are able to quote directly from the Constitution which promises that their rights will be protected. However, there is no absolute guarantee that such protections will be upheld: in New York, Puerto Ricans were long excluded from voting by way of literacy tests, which, it could be argued, was a violation of their right to representation.
While the UK does not, like the USA, have a codified constitution, and is therefore arguably some way behind its fellow democracies, it does have a number of pieces of legislation which contain within them certain promises as to the protection of citizens’ rights. The most prominent of these measures is perhaps the Human Rights Act of 2000 (HRA), a piece of European legislation now incorporated into UK law, which replaced much of the rights protection system in place in the UK prior to its passage. However, while the UK government must make a declaration of compatibility when proposing legislation, it is also able to admit that legislation will contravene the HRA and still pass this legislation if such an act can be justified in the public interest (thus the sovereignty of Parliament is preserved). Moreover, the UK has the right to opt out of even key provisions of the HRA: in 2007, the then home secretary John Reid threatened to opt out of certain human rights laws in order to introduce stronger anti-terrorism laws. Furthermore, while citizens have the right to apply for judicial review if they believe that a piece of legislation contravenes the HRA, courts do not enjoy the power to set aside or amend legislation, merely recommend that this should be the case. Lower down the scale, there is greater scope for allowing the HRA to further protect the rights of citizens, as legislation made by the Scottish Parliament or Northern Ireland Assembly may be challenged and subsequently cancelled or amended under court orders. In addition to this, any decision or action made by a public body, the Welsh Assembly, a local authority or other such organisations can be challenged by a citizen or group; the action at fault can be cancelled and, in some cases, compensation may be rewarded. So while the HRA is undeniably useful, perhaps more so at lower, more local ends of the political power spectrum, its power to protect the rights of citizens remains, ultimately, somewhat limited.
Judicial and legal protection
A further measure which may be employed in the protection of citizens’ rights is that of judicial review. In the USA, the constitution states that the Supreme Court and other federal courts were to consider cases “arising under this Constitution” and some other matters. This was clarified in Marbury v. Madison (1803), which stated that if it considers them to be unconstitutional, the Supreme Court may ‘strike down’ a federal law or an action undertaken by the president or others within the executive branch. In Fletcher v. Peck (1810), the scope of judicial review was extended, and the Supreme Court assumed the right to rule on the constitutionality of state laws and action undertaken by state governments. However, the outcome of constitutional cases depends very much on the composition and stance of the current Supreme Court; it could be said that, in the days of loose constructionism and judicial activism under the Warren and Burger Courts, rulings were perhaps more liberal, and it could follow that civil rights were more likely to gain further protection under these liberal courts—indeed, there were a number of landmark rulings under these Supreme Courts, such as Brown v. Board of Education, Topeka and Roe v. Wade, both of which extended the protection of civil rights to, respectively, black people and women. However, with the increasingly conservative outlook of the Supreme Court, presided over by Chief Justice Roberts, it remains to be seen whether or not civil rights will continue to enjoy the same level of protection in the USA.
Meanwhile, in the UK, judicial review is also a measure which may be used to protect the rights of citizens. There are two main examples of when such reviews can be used: first of all with regard to ultra vires cases (literally ‘beyond powers’ cases) where a citizen may feel that a minister or public body has acted beyond the powers granted to them by law. For example, during the 1990s the then home secretary Michael Howard attempted to extend his powers with relation to the treatment of prisoners, and was successfully challenged under such a case of judicial review. The second example of judicial review is when a citizen feels that they have been unfairly treated by a public body such as the police or the NHS. Prior to the 1980s, judicial review was rare, but since then it has been far more frequent. Thousands of judicial review cases were brought before courts in the 1980s and 1990s; while the majority of these cases failed, they arguably succeeded in forcing ministers and public officials to think more carefully when dealing with citizens. Indeed, in the 1980s, the Cabinet Office issued a document warning civil servants to be careful when making decisions, in case judicial review followed. Nonetheless, there has long been a climate of mistrust in the UK surrounding judicial power, particularly within New Labour, which is wary of judicial conservatism: many have argued that judges are more preoccupied with conserving property rights than with safeguarding the rights and liberties of minority groups or trade unions.
In addition to domestic courts, the UK also has the added dimension of the European Court of Justice (ECJ), which interprets European law and deals with disputes between member states, but may also be used as an appellate court when groups of citizens from an EU state feel that their rights, which are guaranteed by European law, have been ignored or abused. Most EU rights promised to citizens of EU member states concern the treatment of workers, consumers and the recipients of welfare benefits. One example of the ECJ extending the protection of European citizens’ rights is its confirmation of the right to equal pay and treatment for women workers, equal pension rights for men and a variety of entitlements for groups of workers, especially part-time workers. The judgements of the ECJ are binding upon the UK, and thus the ECJ has done a great deal to extend and safeguard economic and social rights within the UK.
The UK has a further protective measure in the form of tribunals and ombudsmen. Under administrative law, all citizens have certain rights in relation to public bodies: the right to be treated equally, the right to service where applicable, and so on. Accordingly, there exists in the UK a system of appeals tribunals, such as Social Security, Gender and Asylum & Immigration, which will hear a citizen’s case when a citizen feels that these rights have been violated, and correct decisions or actions which fail to conform to the principles of administrative rights. Tribunals are more accessible to the average citizen than a normal court of law and, in addition to this, are cheaper and quicker to use. In this respect, then, they are a valuable measure so far as the extension and protection of civil rights in the UK. Ombudsmen are similar to tribunals, consisting of a system of commissioners or ombudsmen in the public and private sectors who investigate cases where citizens believe they have been treated unfairly. Generally, ombudsmen take on cases which would fall outside of the jurisdiction of the courts or tribunals. The most prominent ombudsmen work in central government, local government and the NHS. Although they hear a comparatively small amount cases, they are an important part of the system within the UK that addresses citizens’ grievances and apparent violations of their rights.
Protection by the legislature
Aside from the courts and related bodies, on both sides of the Atlantic there exist elected representatives whose job it is to deal with the grievances of those they have been elected to represent: that is, Congressmen and Members of Parliament. In the USA, many view Congress as the first line of defence so far as civil rights and liberties are concerned, and, indeed, Congress has passed much prominent and important legislation concerning the extension of civil rights. The Civil Rights Act of 1964, for example, prohibited discrimination on the grounds of “race, color, religion or national origin” in public establishments that had a connection to interstate commerce or were supported by the state. Prior to this Act, Congress could only limit the actions of states rather than of individuals; later, Congress extended the reach of some aspects of the 14th Amendment to individuals. Congress also maintains a number of checks and balances which could theoretically limit the powers of any executive which wished to introduce measures which severely infringed on civil rights and liberties. Congress, then, is a seminal factor in the extension of civil rights and liberties in the USA, and, when legislation does manage to gain passage through Congress, the results can be far-reaching.
Similarly, in the UK, the House of Commons is effectively the sovereign body so far as legislation is concerned; therefore, in theory, it is the primary guardian of citizens’ rights. One of the most important powers of the Commons is that it is able to veto a proposed Act of Parliament that might infringe upon citizens’ rights or liberties. The use of this veto is a rare event, since legislation that might not successfully pass the Commons is normally withdrawn by the Government at an early stage; furthermore, the power of the party whips and the strength of party loyalty could prevent MPs from voting against the Government. However, some might argue that the threat of veto is still an important aspect in protecting civil rights. Moreover, while rare, there have been occasions when the House of Commons has decisively defied the Government: in the 1986, the Commons vetoed the proposed Sunday Trading Bill, which would have allowed more shops to open on Sundays. The argument went that this would not only raise religious issues, but also infringe upon the rights of workers to have a day off. More recently, the power of veto was also used in 2005 with the defeat of the 90-day-detention bill, which many viewed as a serious infringement of detainees’ rights. Aside from the power of veto, the Commons can also amend legislation in order to safeguard some rights, as was seen with the ‘watering down’ of the Criminal Justice Act, 2003, as well as the (limited) strengthening of the Freedom of Information Act, 2000, in order to extend citizens’ rights further than the Government had intended. Ultimately, the Commons also has the power to remove a Government via a no confidence vote; while, like the power of veto, the use of this is extremely rare, the threat remains. If a Government were to attempt to introduce measures that would seriously threaten civil or human rights, the Commons holds the ultimate sanction. Finally, in the UK, one of the most ancient and renowned functions of Members of Parliament is that of dealing with constituents’ grievances. While courts, tribunals and ombudsmen, as discussed above, may deal with common types of cases, MPs will often take up the cause of one or a group of their constituents against what could be seen as unjust treatment by central government or, in some cases, local authorities. The advantage of this is that MPs often have faster and more direct access to ministers or senior civil servants; they are also able to ask awkward questions in Parliament, or even address individual cases over the course of debates. This is a valuable aspect of the process of protecting citizens’ rights in the UK.
In addition to the Commons, the UK also has a ‘second line of defence’ in form of the House of Lords, which may to some extent step in if the Commons fails to safeguard civil rights effectively. Unlike the Commons, the Lords is neither dominated by party whips nor under the reign of party loyalties. While it has limited powers, it is able to force the Government’s hand in some cases, as with the Welfare Reform Bill, 1999, which the Lords proposed amendment after amendment to, slowing the process down and compelling the Government to give in. Political commentators have argued that the reform of the House of Lords membership in 1999 has potentially strengthened the Lords’ independence and increased the scope for the safeguard of civil rights. However, a determined Government could still triumph over the Lords, and so the effectiveness of the Lords with regard to the protection of rights is, ultimately, limited.
Prescence of a civil society
The importance of a civil society should not be underestimated. The concept of a civil society denotes a society populated by organisations such as registered charities, non-governmental bodies, community groups, women’s organisations, faith-based organisations, professional associations, trade unions, self-help groups, social movements, business associations, coalitions and advocacy groups. Citizens are able to join these groups or pledge allegiance to them, and thus, in a sense, preserve their own rights. These bodies vary in terms of formality, autonomy and power, but the largest or most successful of these groups can maintain a considerable amount of influence over a government. The most powerful of these groups are generally the media, large pressure or interest groups, and religious establishments. In the USA, much is made of the gun lobby’s apparent influence over the extension of the right to bear arms, which is a contentious and often criticised ‘right’.
In the UK, some pressure groups, such as Charter 88 and Liberty, have succeeded in bringing the issue of civil rights to the forefront of the public stage. The flourishing of such groups is the hallmark of a healthy democracy; in totalitarian societies, such organisations are invariably suppressed and silenced. The fact that such groups have such sway over the political and legislative process in both the USA and the UK is perhaps a sign that civil rights are indeed being protected.
Democratic elections
Moreover, in democratic societies, governments must ultimately account for themselves to the people, as they are elected at the behest of the people. At elections, governments are judged on their performance in office, and the treatment of human and civil rights is an issue at such times. However, compared to issues such as healthcare, the economy and education, the issue of civil rights is a relatively ‘soft’ one—that is, comparatively little importance is placed upon on it.
That said, in the UK, civil rights do seem to be gaining importance in the minds of the people, and ID cards—which many argue infringe upon their civil rights—are likely to be a ‘hard’ issue at the next general election. Ultimately, if substantial numbers of people care about civil rights, a government that depends on these people for power will be forced to listen to them and, hopefully, act accordingly to protect such rights.
Effectiveness of protection
So far, emphasis has been placed on the means by which civil rights and liberties are protected in both the USA and the UK. To fully gain a picture of the state of civil rights in both countries, the effectiveness with which these rights are protected and the recent records of both countries must be examined. As with most democratic systems, the records display mixed results, although it must be remembered that compared with many other regimes across the world, the USA and the UK are relatively exemplary.
For all the protection promised by the Constitution, a study of American history will show that not all groups have been afforded these protective measures, and so have not been able to enjoy total protection of their rights and liberties; the same is broadly true of Britain.
Civil rights acts came to the USA first, with the UK following soon after with its own anti-discriminatory measures. Segregation, a dangerously contentious issue in the USA, was never much of a problem in the UK, although race relations, immigration and discrimination were—and still are—matters of much controversy. In the USA, minority groups have struggled for the extension of their rights and, to some extent, have achieved success in this area. In 1954, with the landmark case Brown v. Board of Education, Topeka¸ the Supreme Court reversed the ‘separate but equal’ ruling that had been the mainstay of segregation in the US. There was further progress in the 1960s, as protests and demonstrations became common occurrences, and Martin Luther King became a leader in the movement for racial equality. Lyndon Johnson, during his time as President, introduced a number of measures within his Great Society legislation which sought to combat racial injustices, such as the Voting Rights Act of 1965 and the Civil Rights Acts of 1964 and 1968. During this time, another important feature of the struggle for justice was ‘affirmative action’, a policy intended to correct past discrimination against minority groups (and women) by ensuring that certain targets and quotas were met. Today, the Supreme Court’s stance on affirmative action—or positive discrimination, as it is sometimes referred to—is ambiguous at best. Despite the extension of many civil rights regarding ethnic minorities in the 1960s, many still felt that their treatment in terms of employment, housing and education were somewhat less than satisfactory. Progress since the 1960s has been sporadic, and despite some legislative and other advances, much civil injustice remains in the USA, and many argue that not all civil rights and liberties laid down in the Constitution are honoured with regard to ethnic minorities.
While in the USA the First Amendment protects freedom of speech, the UK has no such guarantee. While freedom of expression is well established in Britain, there are some restrictions which are seen as far stronger than those in the USA, particularly in the handling of security cases. In the 1980s, anxiety increased over the protection of civil liberties, as critics felt that the government had sought to increase its own power at the expense of citizens’ personal freedom. State security had become something of an obsession under Thatcher, as was evident in the Spycatcher case, where Peter Wright’s book on the security services caused panic among Ministers, who went so far as to take out an injunction to restrict broadsheet newspapers from commenting on the affair. The case was eventually dismissed by the European Court at Strasbourg, which found that the government had violated Article 10 of the Convention.
Moreover, libel laws in the UK are generally far harsher than in the USA, with cases usually resulting in a successful prosecution. However, the UK has, in the main, been generally less harsh on the expression of minority views, particularly those of a left-wing variety: the hysteria of the McCarthy years which so characterised the USA in the 1950s has no British equivalent.
The amount of protection given to basic civil freedoms depends, to some extent, upon the political climate of the time, as well as on the measures set in place to protect citizens’ civil rights; this includes the framework provided for citizens to redress their grievances, either through the courts or their representatives. At first glance, it would appear that the USA has the greatest provision for the protection of civil rights and liberties, due to the nature of its constitution. The UK, on the other hand, has only the Human Rights Act, which is less restrictive than the American Constitution: governments are able to opt out of certain clauses, enabling them to erode civil liberties with legislation such as the 90-day-detention bill. The UK, as Dicey said, is based far more on a climate of civil liberty as well as reliance on parliament and the courts. This could be the reason why the UK appears to have many more routes available for citizens to redress their grievances: while the USA has the courts and Congress, UK citizens, in addition to the courts and Parliament, also has the European Court of Justice, the House of Lords, tribunals and ombudsmen. These added dimensions provide greater scope for the protection of civil rights, despite their limitations.
Both the USA and the UK enjoy the benefits of a civil society—but also the downsides, as some political commentators argue that the bodies which hold influence over the Government represent only a small segment of society, leading minority opinions to dominate over majority opinions. Nonetheless, these organisations still allow for issues—including those connected with civil rights and liberties—to be brought to the forefront of public debate that might otherwise have gone unnoticed.
Both the USA and the UK have seen significant increases in the extension and protection of civil rights and liberties, particularly during the latter half of the twentieth century. In the USA, several initiatives of earlier administrations relating to the problems of minority groups have been extended, such as the White House Initiative for Educational Excellence for Hispanic Americans. In the UK, race relations laws have attempted to outlaw discrimination on grounds of race, colour, creed and sexual orientation, while workers and consumers have seen their rights rise, underpinned by European legislation. However, the governments of both countries have in recent years been criticised over their civil rights records. In its draft report, Redefining Rights in America: The Civil Rights Record of the George W. Bush Administration, 2001–2004, the U.S. Commission on Civil Rights states, “President Bush has neither exhibited leadership on pressing civil rights issues, nor taken actions that matched his words.” In December 2002, for example, Bush repealed a law that allows states to use unemployment compensation funds to provide benefits to workers who must leave their jobs temporarily to care for newborn or newly adopted children. Bush has also opposed legislation such as the Employment Non-Discrimination Act and Hate Crimes Prevention Act, both of which include proposed protection measures for homosexual individuals. In the UK, as discussed above, obsession with state security was rife in the 1980s, and it could be argued that this lead to the erosion of some civil rights and liberties, especially those concerning freedom of speech and expression. Under Thatcher, the rights of trade unions were also eroded, and have as yet not been restored.
More recently, the governments of both the USA and the UK have passed highly controversial pieces of anti-terrorism legislation: in the USA, the ‘Patriot Act’ has been labelled by some as a violation of the First, Fourth, Fifth, Sixth and Eighth Amendments, and attention has also been called to the way in which it appears to remove power from the courts and place it back in the hands of the executive. In the UK in 2005, Tony Blair revealed a new set of anti-terrorism measures which were heavily criticised for their apparent erosion of civil rights and liberties. The debate over whether it is right to remove or erode some civil rights for the benefit of citizens is a contentious one. In some cases the anti-terrorism legislation may indeed prove invaluable for the protection of each country’s citizens. However, if these measures are abused—and many argue that this is a very likely situation—then it is possible that civil rights will be further eroded in both countries.
However, there are, as discussed throughout, a number of means available to citizens through which they can address this erosion of their civil rights and liberties: ultimately, so long as the citizens of each country remain conscious of their civil rights and their apparent erosion, and seek to extend their rights through the courts, representatives or even protest, it would be difficult for a government to entirely remove the means available for the protection of civil rights and liberties. However, many political commentators argue that the limitation of some civil rights is necessary for the protection of citizens: for example, aside from the anti-terrorism legislation debate, freedom of speech can lead to infringement upon the rights of others. In today’s world, the fact that there are basic and universal human rights is widely recognised, and, by extension, civil rights as well. There will always be the risk of abuse and the quiet erosion of certain civil rights, but so long as full advantage is taken of the measures available for the protection of these rights, civil rights will continue to be pursued and protected, though not always completely effectively.