Can Freedom Be Enhanced By Government - Essay Example

Is it Possible for freedom to be enhanced by government interference in the lives of individuals? Individual freedoms among citizens are seen as a symbol of liberal democracy with the respect of human rights and civil liberties. For that reason, any interference with people’s lives by government does not enhance freedom. In most constitutions there are declarations of particular rights or liberties to be accorded to citizens and respected by government, such as freedom of speech, freedom of the person, freedom of conscience, free movement, the right to privacy, and the right to equal treatment. Often these freedoms or rights have an entrenched or protected status so that they may not easily be restricted or overriden by temporary political majorities in control of the legislature. These freedoms are seen as essential to the existence and maintenance of a leberal democracy. The position in the UK was very different and owed much to Dicey, and the Human Rights Act 1998. “….With us the law of the constitution, the rules which in foreign coumtries naturally form part of a constitutional code, are not the source but the consequence of the rights of individuals, as defined and enforced by the courts; that, in short, the principles of private law have with us been by the action of the courts and parliament so extended as to determine the position of the crown and of its servants; thus the constitution is the result of the ordinary law of the land.”(Dicey, A.V, 1969,p.203) In other countries, the rights of the citizen are usually to be found enunciated in general terms in a Bill of Rights or other constitutional document. The effectiveness od such instruments varies greatly. A Bill of Rights is not an automatic guarantee of liberty; its efficacy depends on the integrity of the institutions which apply it, and on the determination of the people that it should be maintained. ” Thus, to secure the individual’s right to freedom from unlawful or arbitrary detention, our law provides specific and detailed remedies such as habeas corpus and the action for false imprisonment. The rights which have been afforded in this way are for most part negative rights to be protected from interference from others,….”(Allen, M, & Thompson, B, 2005, p.441) The legal remedies provided for interference with the citizen’s rights have in recent times been overlaid by procedures which are designed to afford not so much remedies in the strict sense of the term as facilities for obtaining independence and impartial scrutiny of action by public bodies about which an individual believes he has cause for complaint, even though the action may have been within the body’s legal powers. Allen, M, & Thompson, B.(2005), further argues that:” ‘Rights’ and ‘freedoms’ were regarded negatively in the United Kingdom; they were the area of freedom which remained after legal restraints were subtracted. Thus a person was free to do anything subject to the provisions of the law. There was, however, no guarantee that the area of freedom would not be contracted by the incremental encroachment of legislation untill little freedom remained.” In Entick v Carrington[1765] 19 St Tr 1030,p.166, Lord Camden had made it clear that Government, if it is to be free to interfere with individual rights, must be able to point to specific statutory or common law powers. The problem with this was that if these powers did not exist, they could always be created by new pieces of legislation. Under the current climate, the police and other officials, such as Inland Revenue Inspectors and Customs and Excise Officers, have considerable powers under various Acts to obtain warrants and enter and search premises and seize prpoerty. “If on an application made by a constable a justice of the peace is satisfied that there are reasonable grounds for believing- (a)that an indictable offence has been committed; and; (b)that there is material on premises mentioned in subsection (1A) below which is likely to be of substantial value (whether by itself or together with other material) to the investigation of the offence”(Police and Criminale Evidence Act 1984,s.8(1)) The Statute of the Convention’s founding body, the council of Europe, specifically links individual freedom, political liberty and the rule of law as the basis of ‘all genuine democracy’(Council of Europe 1993:2) It can be argued that citizens must be able to participate I government between elections through informed and free debate. For this to happen, Government and Parliament have to be constrained by citizen’s rights which are established in law and not easily tempered with by politicians, bureaucrats or others. It is the task of the courts, or any other body charged with their protection, to establish a specific interpretation of these rights with which to assess and rule unlawful legislation or decisions which violate them. In Young, James, and Webster v UK[1982], the European Court of Hauman Rights stated: “Although individual interests must on occsion be subordinated to hose of a group, democracyb does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position.” The facts in Harman V Secretary of state for the Home Department[1983]AC 280, raises tasks that courts struggle in reaching decisions. The facts are that, Harman was a soicitor who, in discovery proceedings, had obtained documents from the Home Office. These were agreed only to be used for the purposes of the proceedings. They were read out in court. A journalist present in court was shown the documents by Harman for the purposes of an article he was writing. The Home Office took proceedings against Harman alleging contempt. These were successful. In the House of Lords their Lordsips could not agree on what weight freedom of speech should be given. “…..My Lords, in a case which has atracted a good deal of publicity it may assist in clearing up misconceptions if I start by saying what the case is not about. It is not about freedom of speech, freedom of the press……What this case is about is an aspect of the law of discovery of documents in civil actions in the High court….”(Lord Diplock in Harman v Secretary of state) In contrast to Lord Diplock, Lord Scarman said,’…In framing a new rule your Lordships, in our respectful submission, must do so in a way which, first, recognises the important constitutional right to freedom of communication(though with any necessary concession to the individual citizen’s right to privacy), and, secondly, is as far as possible free from anomaly. We have used the term ‘freedom of communication’, but ‘freedom of expression’(perhaps slightly narrower) would do equally well; the later the United Kingdom has, by ratifying the European Convention on Human Rights, bound itself ‘to secure to everyone within [its]jurisdiction.” There is a clear indication that without a written constitution laying down clear principles and based on certain agreed values created the further problem that judges were left to struggle to discern what values they should be seeking to uphold in a democracy. This can be further evidenced in the Spycatcher affair(Attorney-General v Guardian Nwespaers Ltd(No.1)[1987]1 WLR 1248). The facts are that the Guardinan Newspapers both published outlines of Peter Wright’s allegations contained in his book Spycatcher. The attorney-General sought and obtained interlocutory injunctions from Millet J against both papers, restraining them from disclosing any information obtained by Wright in his capacity as a member of the British Security Service until a full trial of the issues took place. Sir Nicolas Browne-Wilkinson V-C discharged the injunctions but the court of Appeal reinstated them in a modified form. On appeal before the House of Lords the injunctions were continued(Lord Bridge and Lord Oliver disssenting), although the book was, by that time, widely available internationally and copies had been imported into the United Kingdom. The majority in the House of Lords placed considerable emphasis on the duty of secrecy and confidentiality Wright owed his former employees. When a differently constituted House of Lords heard the final appeal on the trial of the issues based on breach of confidence, Attorney-General v Guardian Newspapers(No.2)[1988]3 WLR 776, it decided to discharge the injunctions, as disclosure worldwide of Wright’s allegations had destroyed their secrecy and no further damage could be done to the public interest. Following the decision of the House of Lords the Observer and the Guardian petitioned the European Commission on Human Rights alleging, inter alia, breach of Article 10 of the European Convention of Human Rights and fundamental fredoms. In The Observer and The Guardian v UK[1991] 14 EHRR 153, the European court of Human Rights held inter alia: “by 14 votes to ten, that there had been no violation of Article 10 during the period July 1986(when the original injunctions granted on 27 June 1986 were confirmed in an inter partes hearing) to 30 June 1987(when the House of Lords continued the original injunctions even though spycatcher had been published in the USA on 14th July 1987). It is important to note that prior to the Human Rights Act 1998, courts in the United Kingdom could pay only limited attention to the European Convention regarding the interference of indivdual liberties. The Convention was not incorporated into domestic law and could not be applied drectly by courts to the cases before them. In Melone v MPC[1979]Ch 344, Malone sought declarations, inter alia, that tapping of his telephone by the police was unlawful and in breach of his Article 8 rights, Megarry V-C held that the tapping was not unlawful and then addressed the Convention issue. He emphasized that the Convention was not law in the United Kingdom, as the obligation to secure to everyone in the jurisdiction the rights and freedoms defined in the Convention was ‘an obligation under a treaty which is not justifiable in the courts of this country.’ Such remarks obviously indicated that the individual citizens were voulnerable. In contrast to the above views,Professor Amy, D, J(2010), however, suggests that conservatives in America have been demonizing government and not enough has been done to defend it. “Ever since Ronald Reagan declared in 1981 that ‘Government is not a solution to our problems, government is the problem’, Republicans have been waging a political war against this institution. Their core message: the free market is good and government is bad.” He further states that conservatives have conducted a relentless smear campaign against the government, portraying it as wasteful, ineffective, corrupt, oppressive, and bad for business. On justice, equality, freedom, and security, Professor Amy argues that Government is the main promoter of important values, such as justice, that are essential to a good society. He stresses that without a strong public sector, life in America would be less just, less free, more unequal, and more insecure. “Do you believe in justice? That our civil liberties should be protected? That all citizens should all be treated as equals? You would probably answer, ‘Of course!’ But do you realise that if you are an avid supporter of public values like ‘justice’, ‘liberty’ and ‘equality’, then you should also be an avid supporter of government? Government is often the only institution that can make these kinds of core political values a reality. In fact, without an active and healthy public sector, these kinds of public values would be in very short supply”(Professor Amy, D, J,2010). On justice and fairness, he states that even libertarians and anti-government ideologues admit that the criminal and civil justice systems are parts of government that are absolutely necessary and cannot be done away with. Running the police, the courts, and prisons are legitimate public endeavors that must be maintained even in a minimal version of government Political scientist and Economist, Brackins, D(2010), refutes Professor Amy’s arguments saying:” Professor Amy has done a poor job of making a case in support of government intervention. Since Professor Amy is in an institutional position, as he is a professor, it is important to refute his claims and show the fallacies in his reasoning.” In conclusion, it can be submitted that freedom cannot be enhanced by government interfering in the lives of individuals. But that is not to say, criminality and other vices should be given a place in society just simply because government should not be said to be interfering with individual lives. As Professor Amy states, if the government is executing its functions in preventing the rest of the society, the word ‘inteference’ is more often used by those on thw rong side of the law. Interference can only be termed so in cases where the constitution dicatates otherwise and government fails to point its authority to that decision. It is not enough to simply say, ‘government is interfering with people’s lives’ without justification. Bibliography Allen, M & Thompson, B.(2005),’Cases & Materials on Constitutional & Administrative Law’, 8th ed, OUP, Oxford. Alder, J(2005),’Constitutional & Adminstrative law: Text, Cases, & Materials’, OUP, Oxford. Carrol, A.(2009),’Constitutional & Adminstrative law’, 5th ed, Pearson Longman, London. Jackson, P, & Leopold, P.(2001),’Constitutional & Adminstrative law’,8th ed. Sweet & Maxwell, London. Molan, M.(2001),’Constitutional & Adminstrative law:Cracknell’s Statutes’, New ed. Old Bailey press, London. Pollard, D, Parpworth, N, & Hughes, D(2001),’Constitutional & Adminstrative law’: Text with Materials, 3rd ed. Butterworths, London. Tomlins, A(2003),’Public law’, OUP, Oxford. Webley, L, & Samuels, H(2009),’Public law: Text, Cases, and Materials, OUP, Oxford. Statutes Police and Criminal Evidence Act 1984 Read More