AQA A-Level Law: Human Rights — Revision Notes

Human rights is section 3.5 of AQA A-level Law (7162) and the alternative to contract on Paper 3 (2 hours, 100 marks: 75 on human rights, 25 on the nature of law and the English legal system). You must know five Convention rights - Articles 2, 5, 8, 10 and 11 - how they are restricted and enforced, how the Human Rights Act 1998 works, and how English criminal and civil law protects or limits each right. Problem questions ask you to advise; essays ask you to evaluate.

Read these alongside the Human Rights study guide and practise with the Human Rights practice questions.

Syllabus coverage (AQA 7162, section 3.5)

Specification content	Revise
Rules; theory	Rights v liberties; theories of rights; scope of fundamental rights
International law	Second World War; UN and UDHR 1948; Council of Europe and ECHR 1953
UK before the HRA 1998	Status of the ECHR; impact of Strasbourg decisions
UK after the HRA 1998	Incorporation and interpretation; constitutional impact; devolution; criticisms
Articles 2, 5, 8, 10, 11	Content of each right and its exceptions
Restrictions	Arts 8(2), 10(2), 11(2); general requirements
Enforcement	Strasbourg; domestic courts; effect of decisions; judicial review
Human rights and English law	Criminal and civil provisions for each right
Reform	Reform of human rights protection in the UK

What are rights, and how do they differ from liberties?

• Claim-right: someone else owes a correlative duty (W N Hohfeld’s analysis).
• Liberty: freedom to act without a duty not to; nobody has a duty to help you.
• Before 1998 the UK protected residual liberties: you could do anything not forbidden by law.
• Natural rights (for example, John Locke) exist by virtue of being human; legal positivists (for example, Jeremy Bentham, who called natural rights “nonsense upon stilts”) say rights exist only when law creates them. Ronald Dworkin described rights as “trumps” over majority preferences.
• Scope: absolute (Article 3), limited (Articles 2 and 5, exceptions listed in the Article) and qualified (Articles 8, 10, 11, restricted under the second paragraph).

How did international human rights law develop?

Date	Event
1945	United Nations founded after the Second World War
1948	Universal Declaration of Human Rights - a declaration, not a binding treaty
1949	Council of Europe set up
1950-1953	ECHR signed 1950, in force 1953; UK ratified in 1951
1966	UK accepts the right of individual petition to Strasbourg

How were rights protected before the HRA 1998?

• The UK is dualist: a treaty is not part of domestic law until Parliament incorporates it.
• Courts used the ECHR only to resolve ambiguity in statutes (R v Secretary of State for the Home Department, ex p Brind, 1991).
• Common law liberties: Entick v Carrington (1765). Gaps: Malone v Metropolitan Police Commissioner (1979), phone tapping not unlawful in English law.
• Strasbourg decisions against the UK drove change: Malone v UK (1984) led to the Interception of Communications Act 1985; Sunday Times v UK (1979) led to the Contempt of Court Act 1981; Golder v UK (1975) on prisoners’ access to a lawyer.

How does the Human Rights Act 1998 work?

Section	Effect	Example
s2	Courts must take into account Strasbourg case law	R (Ullah) v Special Adjudicator (2004) “mirror” principle
s3	Read legislation compatibly so far as possible	Ghaidan v Godin-Mendoza (2004); R v A (2001)
s4	Declaration of incompatibility; Act stays valid	A v SSHD (2004); Bellinger v Bellinger (2003)
s6	Public authorities must act compatibly	Police, councils, courts
s7	Victims may bring proceedings (normally within one year)	-
s8	Just and appropriate remedies, including damages	-
s10	Ministerial remedial orders	-
s19	Ministers’ statements of compatibility for new Bills	-

• In force 2 October 2000. Parliamentary sovereignty preserved: no strike-down power.
• Devolution: the Scotland Act 1998 (s29) and the Northern Ireland Act 1998 (s6) make devolved legislation outside competence if it is incompatible with Convention rights, so the Convention is more deeply entrenched there.
• Criticisms: judges reading words into statutes under s3; conflict over prisoner voting (Hirst v UK (No 2), 2005); deportation cases (Chahal v UK, 1996); limited protection of economic and social rights.

What do Articles 2, 5, 8, 10 and 11 protect?

Article 2 - right to life. 2.1: life protected by law; no intentional killing. 2.2: force “no more than absolutely necessary” (a) in defence of any person from unlawful violence, (b) to arrest or prevent escape, (c) to quell a riot or insurrection. McCann v UK (1995): violation through planning and control of the operation. Osman v UK (1998): positive duty where authorities know or ought to know of a real and immediate risk. Rabone v Pennine Care NHS Trust (2012): duty to a voluntary psychiatric patient.

Article 5 - liberty. 5.1(a) detention after conviction; (b) non-compliance with a court order or legal obligation; (c) arrest on reasonable suspicion. 5.2 reasons promptly; 5.3 brought promptly before a judge; 5.4 right to challenge detention; 5.5 compensation. Brogan v UK (1988): four days six hours too long; Fox, Campbell and Hartley v UK (1990): suspicion must be objectively reasonable; Austin v Commissioner of Police of the Metropolis (2009): containment (kettling) not a deprivation of liberty on the facts.

Article 8 - private and family life, home and correspondence. Campbell v MGN (2004); S and Marper v UK (2008), indefinite retention of innocent people’s DNA a violation; Von Hannover v Germany (2004).

Article 10 - expression. Includes receiving and imparting information and ideas. Handyside v UK (1976) protects ideas that “offend, shock or disturb”; Observer and Guardian v UK (1991), Spycatcher injunctions after publication abroad breached Article 10.

Article 11 - assembly and association. Peaceful assembly only. Plattform “Arzte fur das Leben” v Austria (1988): positive duty to take reasonable steps to protect lawful demonstrations. Association includes joining a trade union; ASLEF v UK (2007), a union may expel members of a political party.

When can a qualified right be restricted?

1. Prescribed by law / in accordance with law - accessible and foreseeable (Sunday Times v UK, 1979; Malone v UK, 1984).
2. Legitimate aim listed in the second paragraph, such as national security, public safety, prevention of disorder or crime, health or morals, or the rights of others.
3. Necessary in a democratic society - a pressing social need and proportionality (Handyside; R (Daly) v SSHD, 2001; Bank Mellat v HM Treasury (No 2), 2013).
4. Margin of appreciation for national authorities, wider on moral issues.

How are rights enforced?

• Strasbourg: exhaust domestic remedies; apply within four months of the final decision; judgments are binding on the state (Article 46), supervised by the Committee of Ministers; just satisfaction (Article 41).
• Domestic courts under s6-s8 HRA 1998.
• Judicial review (Senior Courts Act 1981 s31; Civil Procedure Rules Part 54): claim promptly and within three months; sufficient interest; grounds of illegality, irrationality and procedural impropriety (Council of Civil Service Unions v Minister for the Civil Service, 1985), plus proportionality where Convention rights are engaged; remedies are quashing, prohibiting and mandatory orders, declarations and injunctions.

How does English law protect or restrict each right?

Right	Protecting provisions	Restricting provisions
Life (Art 2)	Homicide offences; self-defence limited to reasonable force (s76 Criminal Justice and Immigration Act 2008); inquests and IOPC investigations of deaths in custody; negligence	Lawful use of force by police in planned operations
Liberty (Art 5)	PACE 1984: s24 arrest on reasonable grounds, s28 reasons, s41-s44 detention limits (24, 36, 96 hours); habeas corpus	Terrorism Act 2000 s41 (up to 14 days with warrants)
Privacy (Art 8)	Misuse of private information (Campbell); Protection from Harassment Act 1997; Data Protection Act 2018	Investigatory Powers Act 2016 warrants
Expression (Art 10)	Defamation Act 2013 defences; journalists’ sources (Contempt of Court Act 1981 s10)	Public Order Act 1986 s4, s4A, s5; Official Secrets Act 1989 (R v Shayler, 2002)
Assembly (Art 11)	Positive police duty to facilitate protest	Public Order Act 1986 s11-s14 (notice, conditions, bans); Police, Crime, Sentencing and Courts Act 2022; Public Order Act 2023

What reforms have been proposed?

• Commission on a Bill of Rights reported in 2012 without agreement.
• The Bill of Rights Bill was introduced in 2022 and withdrawn in 2023.
• Arguments: more parliamentary control and less Strasbourg influence versus weaker protection and devolution complications. Some argue for adding economic and social rights.

Common mistakes and exam traps

• Saying the HRA lets courts strike down Acts of Parliament.
• Treating Article 5 as qualified: it is limited, with its exceptions listed in 5.1.
• Skipping “prescribed by law” when applying the restriction test.
• Ignoring the English-law provisions; AQA expects named statutes such as PACE 1984 and the Public Order Act 1986.
• Confusing the Council of Europe with the European Union.

Frequently asked questions

Which Articles must I know for AQA 7162? Articles 2, 5, 8, 10 and 11 of the ECHR, plus the restrictions in Articles 8(2), 10(2) and 11(2).

What is the difference between a limited and a qualified right? A limited right, such as Article 5, can be restricted only in the cases listed in the Article. A qualified right, such as Article 8, can be restricted when the restriction is lawful, has a legitimate aim and is necessary in a democratic society.

Is judicial review on the specification? Yes. The enforcement section names the process of judicial review, so know its grounds, time limit and remedies.

Official specification

AQA A-level Law (7162) specification, section 3.5 Human Rights - aqa.org.uk.