A cornerstone of the UK constitution
Therefore, traditionally all rights of UK citizens were granted by the Parliament and were subject to abrogation at the discretion of the Parliament unlike other countries like USA, Germany or India where the fundamental rights were Constitutional rights were entrenched in the Constitution thereby limiting the Parliament’s power to enact any law in violation of those rights. In such countries governed by written Constitutions, Courts have the power to strike down any legislation of the Parliament in contravention of the fundamental rights.2 In fact, it was believed that there was no need for Constitutionally entrenched rights in the UK as there was “freedom.” In the aftermath of World War Two, Britain played a crucial role in the conception and drafting of the European Convention on Human Rights (“ECHR”).
The UK was one of the first countries to sign the Convention. Yet for 50 years, the UK failed to incorporate it into its domestic law, due to a historic hostility based on two misconceptions. First, an outdated – and exaggerated – view of the efficacy of political accountability as a means of securing the protection of fundamental rights. Secondly, fear of undermining Parliamentary sovereignty and transferring power to unelected Judges. John Major famously said, “We have no need for a Bill of Rights because we have freedom”.
However, prior to the Human Rights Act3 (“HRA” or the “Act”), “freedom” was no more than what was left over after all the laws prohibitions had been obeyed. And that freedom gave no specific protection against the acts or omissions of public bodies that harmed fundamental rights. No doubt the majority of the statutes were Convention compliant, but in some key areas, it was certainly not.