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OCR A-Level Law Paper 3 > Introduction to Human Rights > Flashcards

Introduction to Human Rights Flashcards

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1
Q

How does HR law differ from criminal and tort law?

A
  • Compare UK legislation and case law with the ECHR (and case law) to decide if there’s been a breach of an individuals rights
  • Verdict: liable or not liable
  • The person bringing the case is claiming that their rights have been interfered with or taken away
  • Human rights law is to protect us from out own government or state
    • helps law to find balance between the rights of individuals within a society
      • ie. qualified rights: balance the interests/rights of the individuals against the community
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2
Q

What are human rights?

A

They are the rights and freedoms that everyone in a country and the world are entitled to because they are human

A standard to be judged against/compared with

This standard comes from the ECHR as we are a member of a European Human Rights Club

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3
Q

What is the Council of Europe?

A
  • nearly 70 years ago (1950) Holland, Luxembourg, Belgium, Sweden, Ireland, Italy, Denmark and the UK set up an organisation called the Council of Europe which was set up to protect and promote human rightss
  • now has 47 members as of 2021
  • all member countries have to sign the European Convention on Human Rights (ECHR) which is a legal document (promise) by each country to protect the rights of its citizens
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4
Q

What is the European Court of Human Rights?

A

If people break the ECHR, it goes to the ECtHR

  • It is not part of the UK court hierarchy therefore it is not binding
  • Judges who sit on the court are chosen from all the countries that are members of the Council of Europe
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5
Q

Human rights are…

A
  • Universal - belong to every human and individual
  • Inalienable - cannot be taken away
  • Some cannot be limited - eg. torture, slavery, right to life
  • Indivisible - state cannot pick and choose
  • State must respect and protect
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6
Q

What are first-generation rights?

A

fundamental rights in a liberal, democratic society. They are based on liberty and include their right to life, and freedom from torture

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7
Q

What are second-generation rights?

A

‘positive’ rights as they made the state act to ensure people have these things. These rights include the rights to food, water, employment, healthcare, welfare, housing and education

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8
Q

What are third-generation rights?

A

New and developing rights such as environmental issues, the right to economically develop, self-determination and the right to have peace

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9
Q

Fundamental human rights: natural justice

A
  • the court or tribunal must be impartial
  • the judges/magistrates must also have no interest in the case
    • Re Pinochet: HOL Lord Hoffman was Head of Amnesty International and was therefore not impartial. Interferred with the right to a fair trial
  • both parties to the case should be heard
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10
Q

Fundamental human rights: rule of law

A
  • equal treatment before the law
  • law and order are common
  • public bodies are accountable to the law
  • no one is above the law
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11
Q

Fundamental human rights: Due process

A
  • the right to a fair trial and qualified legal representation as well as the right to appeal against decisions of lower courts and tribunals
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12
Q

The UK has no written constitution, but we do have:

A
  • legislation
  • Magna Carta
  • judicial decisions
  • bill of rights
  • Universal Declaration of Human Rights
  • European Convention on Human Rights
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13
Q

What is the definition of civil liberties

A

They are freedoms that are guaranteed to people to protect them from an over-powerful government. They are found in democratic states such as the UK but are not found in undemocratic states like North Korea

They are particular to the country/state in which you live

Can be limited - eg. right to vote is limited to over 18 and not in prison

Gov’s can pick and chose

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14
Q

What are our civil liberties?

A
  • freedom of speech
  • right to privacy
  • right to be free from unreasonable searches of your home
  • right to a fair trial in court/tribunal
  • right to marry
  • right to vote
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15
Q

What are the differences between civil liberties and human rights

A

Human Rights

  • basic rights to all to be free from unequal treatment
  • belong to everyone
  • inalienable and indivisible, can be limited

Civil Liberties

  • granted by the state
  • may be granted to certain sections or groups in a country
  • their extent is likely to be limited by the law granting them
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16
Q

History of human rights

A
  1. Magna Carta 1215
  2. Habeas Corpus
  3. Habeas Corpus Act 1679
  4. Bill of Rights
  5. Universal Declaration of Human Rights
  6. European Convention on Human Rights
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17
Q

History of Human Rights: Magna Carta 1215

A
  • signed by King John and the Barons of Medieval England
  • promises made by the king that he would govern according to the law and not abuse divine powers. The law also applies to the monarch equally
  • everyone should’ve access to courts and costs shouldn’t be a barrier
  • no one would be imprisoned without proper legal process
    • introduced trial by jury
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18
Q

History of Human Rights: Habeas Corpus

A
  • means ‘bring me the body’
  • it is a writ (order by judge) which requires a detained person to be brought before a court to determine if their detention is legal
    • includes hospitals - Charlie Gard
  • ​Led to Habeas Corpus Act 1679
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19
Q

History of Human Rights: Habeas Corpus Act 1679

A
  • introduced to provide protection for the individual against arbitrary detention by the state
  • Ancestor of the ECHR Article 5: The Rights to Liberty and Security and is also linked to modern-day laws on bail and being remanded in custody before a trial
  • Most recently used in 2012 in respect of a prisoner captured by the British forces in Afghanistan and also Charlie Gard
  • Govs can find their way aroung it in terms of national security
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20
Q

History of Human Rights: Bill of Rights 1689

A
  • limits the powers of the monarch and set out the powers of parliament
    • parliament makes the law and the monarch signs off
  • regular and free elections and freedom of speech in parliament
  • forbaid cruel and unusual punishment
  • all men and women enjoy the same basic rights and no one is above the law
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21
Q

History of Human Rights: Universal Declaration of Human Rights

A
  • no legal standing
  • after WW2, the UN was formed and issues the Universal Declaration of Human Rights
  • Eleanor Roosevelt (Chair person of the committee that created it) called it the International Magna Carta for all mankind
  • contains 30 articles of Human Rights (more than ECHR)
  • even though the UK and US signed up, both still have societies allowing racial segregation and discrimination against minorities and women
    • not legally binding therefore no indivisible
  • disagreements between countries about what should be included
22
Q

History of Human Rights: ECHR

A
  • the council of europe was created and all its memebers signed the ECHR in 1953
  • The Council of Europe set up the ECtHR in 1959 to enable individuals of any european country to bring a claim for breach of rights after they’be exhausted all the domestic remedies available
  • even though the UK signed up, it wasn’t able to use the court until 1966
  • judges who sit on the court are chosen from all countries that are members of the Council of Europe
  • court is not supreme, and forms persuasive precedent but its embarassing to ignore the courts verdict
  • the ECHR countains 14 articles which set out different individual rights and are mainly civil and political in nature
23
Q

How are Human Rights protected in the UK

A
  • before 2000 a person who alleged a breach of their rights would have to apply directly to the ECtHR
  • taking a case to Strasbourg could take up to 8 years
  • could only take the case to the ECtHR if its gone thought he courts in the UK, all the way to the Supreme court
  • Human Rights Act 1998 incorporated the ECHR into domestic law and came into force in October 2000
  • the ECHR is now directly applicable in UK courts so there’s no longer a need for people to take their case to the ECtHR in Strasbourg (but they could do as a last resort)
24
Q

What is derogation in relation to the Human Rights Act?

A

the suspension or supression of a law udner certain circumstances

25
Q

When can derogration occur

A

only in ‘time of emergency’

ie. there must be a war or other public emergency ‘threatening the life of the nation’

COVID

26
Q

When has the UK derogated before

A
  • 1979 - circumstances of Northern Ireland and the use of preventative detention of terrorist suspects without trial, met the criteria for derogration
  • a derogation was sought after 9/11 in 2001 to indefinitely detain terror suspects at Belmarsh prison
27
Q

What are absolute rights?

A

strongest rights

the state cannot deviate from them and they can never be breached

28
Q

What are limited rights?

A

State can deviate from these but only in certain prescirbed ways that are laid down within the Article

29
Q

What are qualifie rights?

A

weakest rights

Can be removed or restricted but only if ‘its necessary and proportionate in order to fulfil a legitimate aim’

May be restricted to protect the righst of others and often involve balancing one right against another

30
Q

Current structure of the ECtHR: why was Protocol 14 introduced in 2010?

A

basically a Protocol 11 redo which made the ECtHR a full time court and tried to simplify the procedure to deal with case backlog

31
Q

Current structure of the ECtHR: what will be decided by a single judge?

A

if the case is admissable, ie. can be put to trial

32
Q

Current structure of the ECtHR: when will a case be decided by a Chamber of 7 judges?

A

if its not a repetitve claim

chamber will decide merits of the claim, ie. if its worth it

33
Q

Current structure of the ECtHR: when will a case be decided by a Committee of 3 judges?

A

if its a repetive claim (one with well established case law made by the ECtHR) merits of the case are decided by 3 judges

34
Q

Current structure of the ECtHR: what cases are heard by the Grand Chamber (17 judges)?

A

if the case raises a serious issue of interpretation and importance

also infringements proceedings where Committee of Ministers finds a state isn’t abiding by a court judgement they can get the judgement enforced

35
Q

Role of the ECtHR: who can bring a case to the ECtHR?

A

an individual citizen of a member state

36
Q

Role of the ECtHR: when can a case be brought to the ECtHR?

A

after they’ve tried to resolve it in their domestic courts

37
Q

Role of the ECtHR: if there has been a violation of rights, what can the ECtHR order?

A

for the member state to pay damages

38
Q

Role of the ECtHR: what should the UK courts do if the UK law conflicts with a decision fromt he ECtHR?

A

courts should follow domestic precedent or legislation (Kay v Lambeth LBC) and refer the case to the UK appeal courts

39
Q

Role of the ECtHR: name an ECtHR decision that has not been implemented in the UK

A

allowing prisoners the right to vote

Hirst v UK

40
Q

Role of the ECtHR: in what way id the ECHR a ‘living instrument’?

A

it can interpret the Conventions in a way that developes Human Rights in light of changing social attitudes

as time changes, so can their decisions

41
Q

Role of the ECtHR: for which type of rights do the ECtHR use proportionality and the margin of appreciation?

A

Qualified rights

Article 8, 10 and 11

42
Q

Role of the ECtHR: explain what is meant by proportionality

A

is the states interference proportionate in that it has struck a fair balance between the rights of the individual and the rights of the community

43
Q

Role of the ECtHR: what is the ‘margin of appreciation’?

A

the amount of discretion that the ECtHR gives the state in their interpretation of the convention

realises what is tolerated in one state, may not be in another

44
Q

What is s.4 HRA 1998? Use Bellinger v Bellinger to show this is an advantage

A

if courts find legislation to be incompatible with convention rights, they can issue a declaration of incompatibility

HOL decided in Bellinger they weren’t legally married to her husband but made a declaration of incompatibility of matrimonoal causes Act was incompatible with Article 8 ECHR

45
Q

s.7 HRA 1998

A

allows a person to bring a claim in the UK courts against a public body if they feel their human rights have been breached

You cannot bring a case against another individual or a private employee under HRA

Public bodies include:

  • Gov departments
  • NHS
  • Police and fire service
  • education providers
46
Q

s.2 HRA 1998

A
  • courts must take into acount any relevant judgements from the ECtHR, but they are not bound by them
  • if the court is faced with a conflicting domestic precedent and a decision of the Strasbourg court, it should follow the English law precedent and refer the case on appeal
  • precedents from the ECtHR are persuasive but not binding
47
Q

s.3 HRA 1998

A

requires that in ‘so far as it is possible to do so, legislation must be interpreted in a way which is compatible with the convention rights’

Mendoza v Ghaidan (Rent Act 1977) provided protection for an unmarried heterosexual partner in the event of the death of their partner. CoA decided the legislation should be interpreted so as to conform with the ECHR, which forbid discrimination on the grounds of gender and sexuality. CoA read the original words of the Act to mean ‘as if they were his or her wife or husband’ and so same sex couples were given the same rights

48
Q

s.19 HRA 1998

A
  • all new bills pssing thorugh the Houses of Parliament must contain a written statement as to whther the Bill’s compatible with the Convention Rights
  • nearly all Acts of Parliament passes since 2000 have included a statement that they are compatible with the ECHR
  • but some have not, including legislation around the prevention of terrorism, which we will look at under Article 5
    • if they do this, they will have to make a declaration of incompatibility
49
Q

s.8 HRA 1998: remedies

A

the courts can impose an award fo damages or an injunction forcing the public body to reconsider its actions or decisions

50
Q

The entrenched nature of the Human Rights Act 1998

A
  • makes an Act of Parliament difficult to repeal or amend in the future
    • eg. include a provision saying you need a 75% majority of votes in the HOL beofre repeal or amending
  • Acts that prevent the UK from modifying the HRA 1998
    • Scottish Act 1998
    • Government of Wales Act 2006
    • Northern Ireland Act 1998
  • Current government want to reform the law on Human Rights. They want to repeal the HRA and replace it a Bill of Rights similar to America

OCR A-Level Law Paper 3 (18 decks)

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