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Human Rights flashcards

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Rules in Human Rights law

What is a right in human rights law?: An entitlement that the law protects, mainly against the state.
What is the difference between civil and political rights and economic and social rights?: Civil and political: e.g. life, liberty, expression and fair trial. Economic and social: e.g. work, education and housing.
Against whom can a claim be brought under the Human Rights Act 1998?: A public authority, such as the police or a council, or another body performing public functions (s6). The claimant must be a victim of the act (s7).

Theory in Human Rights

What is the difference between natural rights and positive theories of rights?: Natural rights theory: rights exist because we are human, whatever the law says. Positive theories: rights exist only where the law creates them.
What are absolute, limited and qualified rights?: Absolute: cannot be limited (e.g. Article 3, torture). Limited: may be restricted only in the circumstances the Article lists (Articles 2 and 5). Qualified: may be restricted where justified (Articles 8, 10 and 11).
What must a court do when two rights conflict?: Balance them, e.g. privacy (Article 8) against freedom of expression (Article 10), considering the importance of each in the circumstances.

Human Rights in international law

What is the Universal Declaration of Human Rights 1948?: A statement of rights agreed after the Second World War through the United Nations. It is not a binding treaty.
Name two binding international human rights treaties from 1966.: The International Covenant on Civil and Political Rights 1966 and the International Covenant on Economic, Social and Cultural Rights 1966.
Who made the European Convention on Human Rights, and when?: The Council of Europe, which is separate from the European Union. It was agreed in 1950 and came into force in 1953.

Human Rights in the United Kingdom prior to the Human Rights Act 1998

What were residual rights in the UK before 1998?: People were free to do anything that the law did not forbid. There was no statement of positive rights, and Parliament could remove a freedom by statute.
Which sources protected rights in the UK before the Human Rights Act 1998?: Magna Carta 1215, the Bill of Rights 1689 and common law cases such as Entick v Carrington (1765).
What does Malone v Metropolitan Police Commissioner (1979) show?: Telephone tapping was held not unlawful because no law forbade it. The European Court of Human Rights later found a breach of Article 8 (Malone v United Kingdom, 1984), showing the weakness of residual rights.

Human Rights in the United Kingdom after the enactment of the Human Rights Act 1998

What does section 2 of the Human Rights Act 1998 require?: Courts must take into account the case law of the European Court of Human Rights, but are not bound by it.
What does section 3 of the Human Rights Act 1998 require? Give a case.: Legislation must be read and given effect compatibly with Convention rights so far as possible. In Ghaidan v Godin-Mendoza (2004) “spouse” was read to include a same-sex partner.
What is a declaration of incompatibility?: Under section 4, a higher court may declare an Act incompatible with a Convention right where it cannot be read compatibly (Bellinger v Bellinger, 2003). The Act stays valid; Parliament decides whether to change it.
What do sections 7, 8 and 10 of the Human Rights Act 1998 provide?: s7: a victim may bring a claim, normally within one year. s8: courts may grant just and appropriate remedies, including damages. s10: a minister may amend incompatible legislation by a remedial order.
When did the Human Rights Act 1998 come into force?: October 2000.

The European Convention on Human Rights 1953

How is the European Convention on Human Rights structured?: Rights are set out in numbered Articles, with later protocols adding further rights.
Which Convention rights are named in the AQA specification?: Article 2 (life), Article 5 (liberty and security), Article 8 (private and family life), Article 10 (expression) and Article 11 (assembly and association).
Is the Convention part of EU law?: No. It is a Council of Europe treaty, enforced by the European Court of Human Rights in Strasbourg, and is separate from the European Union.

Article 2 of the European Convention on Human Rights 1953

What does Article 2 protect, and when can life be taken?: The right to life. The state must not take life intentionally, except where force is absolutely necessary, e.g. to defend a person from unlawful violence or to make a lawful arrest.
What positive obligations does Article 2 place on the state?: To protect life where it knows or ought to know of a real and immediate risk (Osman v United Kingdom, 1998), and to investigate deaths.
What did McCann v United Kingdom (1995) and Pretty v United Kingdom (2002) decide?: McCann: a violation, because of the planning and control of the operation in Gibraltar in which suspects were shot. Pretty: Article 2 does not create a right to die.

Article 5 of the European Convention on Human Rights 1953

What does Article 5 protect?: Liberty and security of the person: no one may be deprived of liberty except in listed cases and by a procedure prescribed by law.
Name four permitted grounds for detention under Article 5.: After conviction by a court, arrest on reasonable suspicion of an offence, detention of minors for educational supervision, of people of unsound mind, and for immigration control.
What rights does an arrested person have under Article 5?: To be told the reasons promptly, to be brought promptly before a judge, to challenge the lawfulness of the detention, and to compensation if it was unlawful.
What did A v Secretary of State for the Home Department (2004) decide?: The House of Lords declared indefinite detention without trial of foreign terror suspects incompatible with Article 5 (with Article 14).

Article 8 of the European Convention on Human Rights 1953

What does Article 8 protect?: Respect for private life, family life, home and correspondence.
What did Dudgeon v United Kingdom (1981) decide?: Criminalising private homosexual acts between consenting adults in Northern Ireland breached Article 8.
What did Campbell v MGN (2004) decide?: Publishing details and photographs of a model’s treatment for addiction infringed her privacy; on the facts her privacy outweighed the newspaper’s freedom of expression.
When can interference with Article 8 be justified?: Under Article 8(2) it must be in accordance with the law, pursue a legitimate aim (e.g. public safety, the rights of others) and be necessary in a democratic society.

Article 10 of the European Convention on Human Rights 1953

What does Article 10 protect?: Freedom of expression: holding opinions and receiving and imparting information and ideas without interference by public authority.
What did Handyside v United Kingdom (1976) decide?: Article 10 protects ideas that offend, shock or disturb, but the state has a margin of appreciation; the restriction on the book was upheld for the protection of morals.
When can freedom of expression be restricted?: Under Article 10(2) the restriction must be prescribed by law, for a legitimate aim and necessary in a democratic society (Sunday Times v United Kingdom, 1979, contempt of court).

Article 11 of the European Convention on Human Rights 1953

What does Article 11 protect?: Freedom of peaceful assembly and freedom of association with others, including the right to form and join trade unions.
What did Redfearn v United Kingdom (2012) decide?: There was a violation of Article 11 where an employee dismissed because of his political party membership had no legal remedy.
How are restrictions on Article 11 judged?: By the same tests as Articles 8 and 10: prescribed by law, a legitimate aim such as preventing disorder, and necessary and proportionate. A total ban on a march is harder to justify than conditions on its route or time.

Restrictions

What does “necessary in a democratic society” mean?: There must be a pressing social need, and the restriction must be proportionate: it goes no further than needed to achieve the legitimate aim.
What is the margin of appreciation?: The degree of discretion the European Court gives states in deciding how to protect rights, wider on moral questions and narrower for fundamental rights.
What is derogation under Article 15?: In time of war or another public emergency threatening the life of the nation, a state may derogate from some rights to the extent strictly required. Some rights, such as Article 3, cannot be derogated from.

Enforcement

How is a human rights claim enforced in the UK?: First in the domestic courts under the Human Rights Act 1998, against a public authority, normally within one year.
When can a person apply to the European Court of Human Rights?: After exhausting domestic remedies, within four months of the final domestic decision.
What happens when the European Court finds a violation?: It may award just satisfaction (compensation). The judgment binds the state, and the Committee of Ministers supervises its execution.

Human Rights and English law

How does the Human Rights Act 1998 preserve parliamentary sovereignty?: Courts cannot strike down an Act of Parliament: they can only interpret it compatibly (s3) or make a declaration of incompatibility (s4), leaving Parliament to decide.
What criticisms are made of section 3 of the Human Rights Act 1998?: That it lets judges go too far in rewriting statutes, which is a role for elected Parliament.
What does the prisoner voting dispute show?: After Hirst v United Kingdom (No 2) (2005) found the blanket ban on prisoners voting breached the Convention, the UK was slow to respond, showing tension between Strasbourg and national sovereignty.

Reform

What reforms of human rights law have been proposed?: Replacing the Human Rights Act with a British Bill of Rights, weakening the duty to take account of Strasbourg, narrowing section 3, and adding economic and social rights.
What happened to the Bill of Rights Bill?: It was introduced in 2022 and later dropped.
How should you evaluate proposals to replace the Human Rights Act 1998?: Weigh greater national control and parliamentary sovereignty against the risk of reduced protection for individuals and of the UK’s relationship with the Convention being weakened, and reach a judgement.