Great Britain Finally Makes It to the Eighteenth Century

By Barry, Norman | Ideas on Liberty, February 2001 | Go to article overview

Great Britain Finally Makes It to the Eighteenth Century


Barry, Norman, Ideas on Liberty


On October 2, 2000, the Human Rights Act came into force in Britain.1 Given that the United States has had its Bill of Rights since 1791, the French revolutionaries issued the Rights of Man and the Citizen in 1789, and all major European countries have codes that protect fundamental liberties from the ravages of, at first, monarchs and now parliaments, Britain might appear to have been an uncivilized dictatorship for the last 200 years. The lack of a written constitution and separation of powers would normally combine to produce tyranny even in a formal democracy. Yet they clearly haven't in Britain. Why?

To constitutional traditionalists the question is almost impertinent. We don't need newfangled documents, they say; we have the common law, free elections, and the sovereignty of Parliament to protect our fundamental liberties. The Americans and the Europeans only have the rights that are specified in the code or constitution, but under the common law you can do anything except that which is specifically forbidden. F. A. Hayek, an uncritical admirer of that jurisprudence, actually thought that more rights would exist under the common law than under any bill of rights.2 But that was never convincing since statute law has caused much depredation of these unwritten rights and the judiciary is powerless to strike down offending legislation. Even some conservatives began to fear "elective dictatorship" under the Labor Government of the late 1970s.

But it wasn't just statute law that was a threat to liberties. The common law of libel had spontaneously developed to form a real barrier to freedom of speech, and without a constitution and a First Amendment this precious right depended on the unpredictability of the judiciary. A British statute had made most tort cases subject only to a judge for the verdict and damages (so that the country avoided some of the excesses of American tort law), but libel was exempt. In such cases not only do the payments rival American tort cases, but the law constitutes a real inhibition to free expression.3

But the real problem for rights theorists was the existence of sovereignty itself and the absence of serious judicial review.4 It is true that the courts have been diligent in their scrutiny of powers, under acts of Parliament, exercised by ministers. (Indeed, Freddie Laker could only start up his cheap transatlantic airline through a court decision that ended the monopoly of the [then] nationalized airline.) But they could not strike down an act of Parliament. Many conservatives were critical of rights documents for another reason. If a country had a long civil rights tradition (as Britain has) it wouldn't need a document anyway; and if it didn't, such a written constitution would be useless against a dictator. A written document would simply lead to vexatious litigation and involve judicial meddling in public policy.

Human Rights in Britain

Still, Britain has for the last 40 years enjoyed a crypto-protection from a rights-- threatening government. As a signatory to the European Convention on Human Rights (1950), she had always accepted adverse decisions of the European Court of Human Rights (this has nothing to do with the European Union and its Court of Justice) and amended offending domestic legislation accordingly. Britain's record before the European Court of Human Rights in Strasbourg looks pretty bad precisely because there was no remedy available at home.

Thus in a series of cases Britain was condemned for allowing caning in schools, cruel treatment of Irish Republican Army suspects in Northern Ireland, refusing to allow female Commonwealth immigrants to bring their husbands into the country (if the law had also forbidden the entry of wives it would have been legitimate), and many other, fairly minor depredations of rights. The trouble with this approach was its delay and cost-it normally took about five years for a case to be heard at an average price of over $42,000.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Great Britain Finally Makes It to the Eighteenth Century
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.