AQA A Level Law (7162): Human Rights – Study Guide

Human rights law covers the basic protections that every person has, mainly against the state. For AQA A Level Law this topic centres on the European Convention on Human Rights and the Human Rights Act 1998. You must know the key Articles, how rights can be limited and enforced, and be able to evaluate the law as well as apply it.

Where this fits in the specification

Human rights is one of the optional areas of AQA 7162. The content moves from the idea of rights, through international and pre-1998 United Kingdom law, to the Convention, five Articles, restrictions, enforcement, the relationship with English law and reform. Questions usually give a scenario and ask you to advise, or ask for an essay on how well rights are protected.

Rules and theory

A right is an entitlement that the law protects. Rights are often classed as civil and political (life, liberty, expression) or economic and social (work, education, housing). Natural rights theory says rights exist because we are human, whatever the law says; positive theories say they exist only where law creates them. Rights may be absolute (cannot be limited), limited or qualified (may be restricted where justified). Where rights conflict, such as privacy and expression, the court must balance them.

Human rights in international law

After the Second World War states began to agree common standards. The Universal Declaration of Human Rights 1948 set out rights but is not a binding treaty. Binding treaties include the International Covenant on Civil and Political Rights 1966 and the International Covenant on Economic, Social and Cultural Rights 1966. Regionally, the European Convention on Human Rights was agreed by the Council of Europe in 1950 and came into force in 1953; it is separate from the European Union.

The United Kingdom before the Human Rights Act 1998

Before 1998, rights were residual: people were free to do anything the law did not forbid. Sources included Magna Carta 1215, the Bill of Rights 1689 and common law cases such as Entick v Carrington (1765), which held that the state needs legal authority to enter private property. The weakness was that Parliament could remove rights by statute and there was no statement of positive rights. In Malone v Metropolitan Police Commissioner (1979) the court held that telephone tapping was not unlawful because no law forbade it, and the European Court later found a breach of Article 8 in Malone v United Kingdom (1984). Individuals could not rely on the Convention in domestic courts and had to go to Strasbourg, which was slow and costly.

The Human Rights Act 1998

The Act came into force in October 2000 and brought the Convention rights into domestic law. Its key sections are:

• Section 2: courts must take account of Strasbourg case law, though they are not bound by it.
• Section 3: legislation must, so far as possible, be read and given effect in a way compatible with Convention rights (for example Ghaidan v Godin-Mendoza, 2004, where the word spouse was read to include a same-sex partner living as husband or wife).
• Section 4: if that is impossible, a higher court may make a declaration of incompatibility, which does not strike down the Act and leaves Parliament to decide (A v Secretary of State for the Home Department, 2004, on detention of foreign nationals; Bellinger v Bellinger, 2003).
• Section 6: it is unlawful for a public authority to act incompatibly with a Convention right.
• Section 7: a victim may bring a claim, normally within one year.
• Section 8: courts may grant such remedies as are just and appropriate, including damages.
• Section 10: a minister may amend incompatible legislation by remedial order.

The European Convention on Human Rights

The Convention sets out rights in Articles, with protocols adding more. Some, such as Article 3 (torture), are absolute. Articles 2 and 5 are limited: the Article lists the circumstances in which interference is allowed. Articles 8, 10 and 11 are qualified: interference is allowed if in accordance with law, for a legitimate aim and necessary in a democratic society.

Article 2: right to life

The state must not take life intentionally, except where force is absolutely necessary, for example in defence of any person from unlawful violence or to effect a lawful arrest. The state also has positive obligations to protect life where there is a real and immediate risk (Osman v United Kingdom, 1998) and to investigate deaths. In McCann v United Kingdom (1995) the European Court found a violation on the basis of the planning and control of an operation in Gibraltar. In Pretty v United Kingdom (2002) the Court held that Article 2 does not create a right to die.

Article 5: liberty and security

No one may be deprived of liberty except in listed cases and by a lawful procedure, such as detention after conviction, arrest on reasonable suspicion of an offence, detention of minors for educational supervision, of people of unsound mind, and for immigration control. An arrested person must be told the reasons promptly, be brought promptly before a judge, may challenge the detention and may claim compensation if it was unlawful. In A v Secretary of State for the Home Department (2004) the House of Lords declared indefinite detention of foreign terror suspects incompatible with Articles 5 and 14.

Article 8: private and family life

Article 8 protects private life, family life, home and correspondence. In Dudgeon v United Kingdom (1981) the criminalisation of private homosexual acts in Northern Ireland breached Article 8. In Campbell v MGN (2004) the House of Lords found that publishing details of a model’s treatment for addiction infringed her privacy,. Interference under Article 8(2) must be lawful, pursue a legitimate aim such as public safety or the rights of others, and be necessary.

Article 10: freedom of expression

Article 10 includes the freedom to hold opinions and to receive and impart information. It protects speech that shocks, offends or disturbs (Handyside v United Kingdom, 1976, which also set out the margin of appreciation). Restrictions under Article 10(2) must be prescribed by law and necessary (Sunday Times v United Kingdom, 1979, on contempt of court).

Article 11: assembly and association

Article 11 protects peaceful assembly and the freedom to form and join associations, including trade unions. Restrictions must meet the same tests as for Articles 8 and 10. In Redfearn v United Kingdom (2012) the Court found a violation where an employee was dismissed because of his political party membership and had no remedy.

Restrictions

Restrictions come in three forms. Absolute rights cannot be limited or derogated from. Limited rights are subject to the exceptions written in the Article. Qualified rights can be limited if the interference is lawful, has a legitimate aim and is necessary in a democratic society, which requires a pressing social need and proportionality: the measure must go no further than needed. States have a margin of appreciation, which is a degree of discretion, wider for moral questions and narrower for fundamental rights. Under Article 15 a state may derogate from some rights in war or a public emergency threatening the life of the nation, but not from Article 3.

Enforcement

A person who claims that a right has been infringed first uses the domestic courts, relying on the Human Rights Act 1998. A victim who has exhausted domestic remedies may apply to the European Court of Human Rights in Strasbourg, now within four months of the final domestic decision. The Court may find a violation and award just satisfaction. Judgments bind the state, and the Committee of Ministers supervises their execution.

Human rights and English law

The Act aims to balance protection of rights with parliamentary sovereignty: courts cannot strike down primary legislation, only interpret it under section 3 or make a declaration under section 4. Debates include whether section 3 lets judges go too far in rewriting statutes and whether following Strasbourg undermines national sovereignty (as in the prisoner voting dispute after Hirst v United Kingdom (No 2), 2005).

Reform

Reform proposals include replacing the Act with a British Bill of Rights, weakening the duty to follow Strasbourg, narrowing section 3 and adding economic and social rights. A Bill of Rights Bill was introduced in 2022 and later dropped. Evaluate by balancing national control against the loss of protection.

Worked example

Facts: Jamil organises a peaceful march against a factory closure. The police ban it the night before, citing possible disorder, and arrest him when he goes ahead. He is held for 36 hours before seeing a judge. Advise Jamil.

1. Identify the rights: Article 11 (assembly), Article 10 (expression) and Article 5 (liberty).
2. Public authority: the police are a public authority under section 6, so Jamil may bring a claim as a victim under section 7, within one year.
3. Article 11 is qualified. Ask whether the ban was prescribed by law, pursued a legitimate aim (preventing disorder) and was necessary and proportionate. A total ban is harder to justify than conditions on route or time, and a real risk must be shown.
4. Article 5: arrest and detention must fall within a listed ground and he must be brought promptly before a judge. The delay must be justified.
5. Remedies: section 8 allows damages or other relief. If domestic remedies fail, Jamil may go to Strasbourg within four months.

Common mistakes

• Confusing the Convention with the European Union, or saying a declaration of incompatibility strikes down an Act.
• Failing to distinguish absolute, limited and qualified rights.
• Listing cases without applying proportionality, or forgetting that section 6 applies only to public authorities.
• Saying Strasbourg decisions bind UK courts; under section 2 they must be taken into account.

Exam technique

For advise questions, name the Article, say whether the right is limited or qualified, apply the test and conclude. For evaluate or discuss give strengths, weaknesses and a judgement. Cite only sections and cases you are sure of.

Check your understanding

1. Which body drafted the European Convention on Human Rights? The Council of Europe.
2. What does section 3 of the Human Rights Act 1998 require? Legislation must be read compatibly with Convention rights so far as possible.
3. What is the effect of a declaration of incompatibility? The law stays valid; Parliament decides whether to change it.
4. Name the three tests for interference with a qualified right. In accordance with law, a legitimate aim and necessary in a democratic society.
5. What was decided in Pretty v United Kingdom about Article 2? Article 2 does not create a right to die.
6. Who is a public authority under section 6? Bodies such as the police and councils, and others performing public functions.
7. How long does a victim have to bring a Human Rights Act claim? Normally one year.

Frequently asked questions

Is human rights compulsory in AQA A Level Law? No. Human rights is one of the optional areas of AQA A Level Law 7162; Paper 3 examines either human rights or law of contract.

What is the difference between absolute, limited and qualified rights? Absolute rights, such as Article 3, cannot be limited. Limited rights, such as Articles 2 and 5, are subject to exceptions written in the Article. Qualified rights, such as Articles 8, 10 and 11, can be restricted if the restriction is lawful, has a legitimate aim and is necessary in a democratic society.

Does a declaration of incompatibility strike down an Act? No. Under section 4 of the Human Rights Act 1998, the law stays valid and Parliament decides whether to change it.

Are UK courts bound by Strasbourg decisions? No. Under section 2 of the Human Rights Act 1998, UK courts must take account of European Court of Human Rights case law, but they are not bound by it.