Beginning Human Rights Law

Howard Davis

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781317807346
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

Whether you're new to higher education, coming to legal study for the first time or just wondering what Human Rights Law is all about, Beginning Human Rights Law is the ideal introduction to help you hit the ground running. Starting with the basics and an overview of each topic, it will help you come to terms with the structure, themes and issues of the subject so that you can begin your Human Rights module with confidence.

Adopting a clear and simple approach with legal vocabulary explained in a detailed glossary, Howard Davis breaks the subject of Human Rights Law down using practical everyday examples to make it understandable for anyone, whatever their background. Diagrams and flowcharts simplify complex issues, important cases are identified and explained and on-the- spot questions help you recognise potential issues or debates within the law so that you can contribute in classes with confidence.

Beginning Human Rights Law is an ideal first introduction to the subject for LLB, GDL or ILEX and especially international students, those enrolled on distance learning courses or on other degree programmes.

Chapter 1

Introduction to the study of human rights law in the United Kingdom

LEARNING OBJECTIVES

On completing this chapter the reader should understand:

•The nature of human rights law in the UK

•The main sources of human rights law

•Some key points for answering human rights exam questions

•The name of some of the key printed and online resources relating to human rights law in the UK.

INTRODUCTION

Our understanding of human rights law can be helped by understanding the basic ethical or moral idea of human rights. Essentially, human rights are the entitlements of individuals which should be respected no matter who the individuals are or what they may have done. To deny a person their human rights is to refuse to treat them as a free human being, a full person in their own right.

These are basic entitlements which need the protection of the law. Therefore it is the responsibility of the nation states to protect human rights. But states, through their governments, are often responsible for rights being abused. Therefore, when states fail to protect human rights, it is important that there are also international remedies available. Indeed the standards of human rights law have been, to a great extent, set internationally (especially through the United Nations). The focus of this book is on the relation between, firstly, human rights at the European level (through the European Convention on Human Rights (ECHR)) and, secondly, on the way those rights are brought into UK domestic law through the Human Rights Act 1998 (HRA). You will need to be familiar with both the ECHR and the HRA.

Upholding person A’s rights might involve undermining the rights of person B. If so, the right thing to do may be to limit A’s rights. An example is where the media’s right to freedom of expression may be restricted in order to protect a person’s right to a fair trial — the laws of ‘contempt of court’ curtail the media’s right to comment on a trial. In some, perhaps extreme, circumstances it may even be appropriate to curtail rights in order to protect a compelling general interest of the public. Judges applying human rights law are, therefore, often trying to balance rights with other rights and rights with other interests. As we shall see, one of the main jobs of courts dealing with human rights claims is to try and balance competing rights or balance rights with the public good.

The European Convention on Human Rights (ECHR) and the Human Rights Act 1998 (HRA)

The ECHR comes from the Council of Europe (not the European Union). It is a list of articles which embody basic civil and political rights, derived from the UN Declaration of 1948, and it is enforced by the European Court of Human Rights (ECtHR). Member states of the Council of Europe agree to ensure that their law and administrative practices are compatible with the ECHR. If not, individuals can go to the ECtHR, which is in Strasbourg, for a ruling. But the ECHR, because it is international law, is not directly enforceable in UK courts (see Chapter 2).

In simple terms, the HRA makes ‘Convention rights’ enforceable in UK courts. The HRA is an Act of the UK Parliament which, in essence, requires statutes to be interpreted, so far as possible, to be consistent with the rights in the ECHR and it makes it unlawful for government bodies and agencies (broadly defined) to do things which are inconsistent with those rights (see Chapter 3).

Protected Rights and Freedoms

So, what are the particular rights and freedoms which are protected through the ECHR and the HRA? This involves thinking about the underlying values which are being protected, the way the particular legal text which embodies the right has been interpreted, the way in which the legal right has been applied by the courts and the sort of impact on aspects of political, economic, social and private life it has had. Before doing this for particular rights you need to be aware of some of the general approaches taken by the ECtHR and the UK courts to the interpretation of the ECHR — remember all texts need to be interpreted but the rules and principles governing interpretation tend to be external to the text (see Chapter 4).

•A society that failed to outlaw intentional killing or which allowed torture would be one in which people are treated as mere physical objects to be disposed of at will and not as human beings. Articles 2 and 3 of the ECHR deal with these matters and we can see, in the text, interpretation and application of these articles, the seriousness with which these rights are taken (see Chapter 5).

•The same can be said for physical liberty. People who are imprisoned or otherwise locked up are no longer persons in the full sense because all their actions are controlled by their jailor. On the other hand, there are some very important reasons (punishing criminals is the obvious one) which can justify taking away someone’s liberty. Article 5 ECHR deals with this and its point is to ensure that states only allow people to be imprisoned etc for good reasons and that these reasons are found in the law and their application to individuals can be tested by independent courts (see Chapter 6).

•The rule of law pervades the Convention (see Chapter 4). The basic idea of the rule of law is that people should only suffer disadvantage (such as loss of their liberty or of their property) if this loss is a consequence of the application of pre- existing rules (laws). It would mean little, however, if people were not able to participate fully and equally in the various procedures (trials and other hearings etc) by which those legal rules are applied to them. This is the right to a fair hearing which is found in Article 6 ECHR (see Chapter 7).

•Totalitarian governments, such as the Nazis or the Stalinists, denied the humanity of their citizens by trying to control all aspects of life. A society which protects human rights, on the other hand, needs to recognise some ‘space’ in which the individual is sovereign and which the state cannot invade. This idea is found in the notions of ‘privacy’ (Article 8 ECHR) and ‘property’ (Article 1 of the First Protocol ECHR). But this is difficult and controversial territory. There are many situations in which a person may claim their privacy or property is invaded, but the state may also reasonably claim there are overwhelming reasons, based on the rights of others or the public interest, why this should be so. The need to deal with such dilemmas is found expressly in the text of both articles (Chapter 8).

•As well as having private lives we also have public lives. We live in a society subject to the law and government. We should not be merely subject to the will of those in power but should be able to participate in the way laws are chosen and be able to express ourselves on public affairs, not just because they may affect us personally but as an expression of our citizenship. Again, though, there are many situations in which such expression may restrict the rights of others or undermine the safety of others and so on. Articles 10 and 11 ECHR deal with these matters (Chapter 9).

•People have beliefs of various kinds, religious or otherwise, which may be central to their identity. Interference with these beliefs and the way they may be disclosed in public can be deeply hurtful and undermining of the sense of self. Again, though, showing belief, through dress or diet for instance, can be equally disruptive and disturbing for others. Article 9 and Article 2 of the First Protocol deal with this (Chapter 10).

BASIC STUDY SKILLS

Studying human rights law in the UK involves exploring both legislation and case law. You will need to become familiar with the HRA itself (it is a short statute and easy to read) as well as the ECHR, or at least its ‘Section 1’ (which contains the text of the rights outlined above). Likewise, major cases decided by the ECtHR, where they interpret the ECHR, need to be studied because UK courts must take these into account. Then, as regards UK law, you will need to demonstrate an understanding of the leading cases and apply the HRA in various situations. In this book the focus is on English and Welsh cases but there are also some important cases decided in the Scottish and Northern Ireland courts. The focus is, therefore, on case law. The skill of reading a case involves:

•Getting a concise understanding of the important, relevant, facts. Reading the headnote of a reported case can help here.

•Understanding the legal issue in the case. In a human rights case the issue will usually be whether a particular action or decision of an official (civil servant, police officer etc) is compatible with human rights. This question ...