9- Rules & theory in human rights law

Question 1

How are rights in the UK protected?

Answer 1

1. Legislation made by Par (HRA 1998)
2. Common law
3. Documents such as Magna Carta and the Bill of Rights
4. Authoritative writings

Question 2

What is the UK constitution based on?

Answer 2

1. Doctrine of the separation of powers (theory proposed by Montesquieu that powers in a state should be shared between 3 bodies: executive, legislative, and judiciary).
2. Rule of law

Question 3

What are the 3 types of rights?

Answer 3

1. Absolute rights: Where a state cannot justify interfering with them (Art 2, Art 3)
2. Limited rights: Where a right is set out, such as right to liberty (5), but circumstances are set out when the right is limited such as imprisonment.
3. Qualified rights: Where, bc of public interest, or to protect rights of others, it is proper to restrict the freedom. (Art 10 freedom of expression can be restricted by placing restrictions on the media during the course of a criminal trial to ensure a fair trial.)

Question 4

What are rights? What are human rights?

Answer 4

Guaranteed freedoms.

Rights & freedoms that everyone in a country and the world are entitled to because they are human.

Question 5

What is the UDHR?

Answer 5

Universal Declaration of Human Rights 1948

Question 6

What is the ECHR? And the ECtHR?

Answer 6

European Convention on Human Rights 1950

 - International treaty signed in 1950 to protect human rights and freedoms in the 47 states that have adopted it.
 - It is separate from the EU and its terms are overseen by the ECtHR.

European Court of Human Rights in Strasbourg

Question 7

What is the EU? And the ECJ?

Answer 7

European Union

 - Political and econ union of 27 member states.
 - It includes the Charter of Fundamental Rights and Freedoms 2009, which brings together all rights that are common to EU member states.
 - Its terms are overseen by the European Court of Justice.

European Court of Justice

Question 8

What is the HRA?

Answer 8

Human Rights Act 1998

Question 9

Explain the development of human rights in 4 points

Answer 9

1. Thoughts about human rights started with the ancient civilisation of Babylon. These ideas spread quickly to India, Greece & Rome.
2. In Rome the idea of ‘natural law’ came about (discussed in law & justice) bc people tended to follow certain unwritten laws.
3. In time, documents were made asserting human rights, and are the predecessors of many of today’s HR docs.
   
   • Magna Carta 1215
   • Petition of Right 1628
   • US Constitution 1787
   • The French Declaration of the Rights of the Man and the
     Citizen 1789
   • US Bill of Rights 1791
4. The IIWW was the most significant influence on human rights thinking, and the UDHR was written, with 30 rights.

Question 10

What are the basic principles of human rights?

Answer 10

1. They belong to everyone regardless of sex. race, political opinion etc
2. Ideally, they are universal.
3. They can only be limited in certain circumstances and some, like the prohibition of torture, can never be limited.
4. States cannot pick and choose which rights to accept.
5. Human rights are owed by the state to the people, so public bodies must respect human rights and gov must ensure there are laws in place so that people respect each other’s rights.

Question 11

What are the 2 problems that arise from the principles of human rights?

Answer 11

1. Human rights thinking arises out of a view of what we want humans TO BE, not out of what they are.
2. It is closely tied to the idea of democracy, so a democratic state will be more likely to promote human rights.

Question 12

What is the difference between right and freedom?

Answer 12

RIGHT: a common privilege given to all citizens, for example the right to vote.

FREEDOM: the abscence of a prohibition or compulsion.

Question 13

What is the difference between human rights and civil liberties? Provide an example of a UK civil freedom

Answer 13

HUMAN RIGHTS: those fundamental rights considered to be universal to all people.

CIVIL LIBERTIES: those rights and freedoms recognised by a particular country.
- they protect an individual from the state and are underpinned by a country’s legal system.
- thye prevent governments from abusing their powers and restrict the level of interference in peoples’
lives.
- the Magna Carta can be considered a blueprint for future constitutions and the setting of civil liberties.

An example of a UK civil freedom is HABEAS CORPUS- which appears to have been in effect in the UK since at least the 14th Century.
- Under this rule anyone who has been arrested, or deprived of their liberty, may request that they are
presented before a judge so that the legality of their detention can be judicially decided.
- It has been argued that the spirit of this ancient law has been severely undermined by the introduction
of modern anti-terrorist legislation.