Charles from NO – CCTV wrote us an interesting email when he heard about the film, and we wanted to share his thoughts. Do you agree with what he says? How do you feel the Common Law systems work with respect to your privacy? Let us know…
The Common Law
Often discussions on the rights and freedoms of people in the UK focus exclusively on the Human Rights Act, as though rights didn’t exist before this legislation was introduced. This is simply not true. The English and Scottish legal systems are Common Law systems which have at their heart key principles of equity and justice. In a common law country you are free to do anything unless it is specifically unlawful – this means that the state does not need to grant rights or give people permission to do anything. The state and the courts define what people cannot do and in fact a jury can reject bad laws made by the state (a power little exercised in an age when juries are “instructed”).
The rights agenda that we have inherited from mainland Europe stems from the Napoleonic legal system where what is allowed is defined and everything else is not allowed.
Implicit in the granting of a right is the ability to take the right away. Human rights cannot be granted to people – human rights exist and people have them by virtue of being human. Codifying the “right to life” or the “right to privacy” creates a contradiction of terms. A human right is no-one’s to grant, qualify or remove.
Reading the small print of the Human Rights Act illustrates the contradictions. Many of the “rights” are “qualified” and so the Act defines when these “rights” do not exist. For instance the “right to respect for private and family life” can be removed “in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”. A pretty large space for the state to drive privacy busting legislation through.
The “rights” in the Human Rights Act were written into the European Convention on Human Rights (ECHR) after the second world war. The Convention can be viewed as a minimum set of principles that a state must uphold to call itself a democracy. It does not represent the pinnacle of freedom and the UK government’s need to derogate from these principles, for instance in relation to detention without trial, raises serious questions about the state of our nation.
The question that should be asked is why hasn’t the Common Law protected freedoms in the UK?
The Common Law has been taken for granted – most people in the UK do not even realise that they live in a Common Law country and the principles are rarely taught in schools. Added to this is the fact that successive governments have over legislated and sought to stifle the Common Law (at times they have brutally abolished parts of the Common Law ). Finally lawyers have allowed the sea of new legislation to stand in the way of right and wrong and many now see their role solely as interpreters of the statute laws spewed out by parliament.
Last year Desmond Browne QC, the Chairman of the Bar said: “A quarter of a century after 1984, the common law principles which govern protection of our privacy from intrusion by the media are just as relevant, indeed almost certainly more so, in relation to surveillance by the state.”
It is time to revitalise the Common Law protection of freedoms in the UK.