LEC 7 (not about the EU! its European union plus)

Question 1

human rights

Answer 1

• there is no single definition for this but it is about the rights that are fundamental to individual people as humans.

Question 2

civil liberties

Answer 2

the rights that governments owe people AKA what the government should have enshrined in their laws to protect people.

Question 3

the council of europe

Answer 3

• the leading human rights body in Europe
• separate from the EU
• only 46 members (not Russia after Ukraine war)
• all member states of EU

Question 4

why does the council of Europe exist?

Answer 4

after 2nd WW the whole world was committed to peace and construct a level to protection and rights that nobody has had before

Question 5

the European convention of human rights

Answer 5

• an international treaty to protect human rights and political freedom in Europe
• signed in 1953
• still rely on it as it is where we find our agreed rights
• it set up the court

Question 6

ECHR structure

Answer 6

section 1: rights and freedom
section 2: court and machinery
protocols: 13 supplementary protocols (extra agreements signed over time that weren’t in the original convention

Question 7

3 types of right with different weight and strengths.

Answer 7

1) absolute rights (3-4) - cannot be restricted in any way or in any circumstance (e.g. inhuman torture)

2) qualified rights (8, 9, 10, 11) contains a qualification clauses which enable a balance to be stuck between the rights of an individual and the interests of a democratic society.

3) limited rights (2, 5, 6, 7) contains a clause that prescribes set circumstances in which the right may be infringed without breaching the article (particular times where is alright to not to do the man protection that the right specifies)

Question 8

who owed a duty under the ECHR (European court of human rights) ?

Answer 8

Public authorities!
mostly is is just governments and countries who are actually responsible for maintaining and protecting our human rights, only they get challenged for infringement of human rights BUT this is changing. now any of these public authorities below. these are next in line for challenge over human rights infringements:
- NHS trusts, hospitals, health boards
- courts and tribunals
- local authorities
- government departments
- schools
- police, prisons, immigration offers
- ombudsmen
- public prosecutors

ANYONE DOING THE WORK OF THE STATE

(also includes private companies carrying out public functions e.g.
- private care homes
- private security companies
- privatised utilities e.g. british gas, water companies
- private hospitals

Question 9

claims under the ECHR

Answer 9

• individuals can bring claims ONLY if they have exhausted all domestic avenues

Question 10

ECHR

Answer 10

• law said to be a living instrument (bc its constantly in motion and changing)
• yo are actually suppose to get solid protection of your human rights so over time, what is being protected changes, bc what we want as a society changes over time.

e.g. the right to die

Question 11

the human rights act 1998

Answer 11

the way the UK implements European convention rights.
it is the first place we go for rights protection
- it is underpinned by the European convention

Question 12

article 2 (right to life)

Answer 12

states have 3 main duties under article 2:
1. a duty to refrain from unlawful killing
2: a duty to investigate suspicious deaths
3: they have a positive duty to prevent foreseeable loss of life

positive duty to protect life:

there can be positive obligation on the state to protect life where:
- a danger of life was known or ought to have known at the time
- it was a real and immediate risk of danger (to life) to an identified individual
- there is a failure to take reasonable measures to avoid the risk

Question 13

the only time that member states dont have to apply article 2

Answer 13

is in time of war

Question 14

Article 2: the right to die

Answer 14

• at the moment there is no right to die within article 2, only the right to life

Question 15

article 3: torture and inhuman treatment

Answer 15

• prohibits torture and inhuman treatment
• there are NO exceptions
• used in cases like police brutality and poor conditions in detention

Question 16

article 4: slavery and forced labour

Answer 16

• prohibits slavery and forced labour
  this exempts labour that is:
• done as a normal part of imprisonment
• in the form of compulsory military service or work done as an alternative by conscientious objectors
• required to be done during a state of emergency
• considered to be a part of a persons normal “civic obligations”

Question 17

article 4 related: the modern slavery act 2015:

Answer 17

• relevant in the business industry
  require companies to make: declarations about their employment practices ad they have to sign statements about what they’re doing to prevent and avoid and discover slavery in their supply chains.

Question 18

article 5:liberty and security

Answer 18

• everyone has the right to liberty and security of the person, subject to only lawful arrest or detention
• you have the right to be lawfully to be arrested. but you need to be told when youre being arrested, the charges you face, you need access to justice, to court…..

Question 19

article 6: provides the right to a fair trial

Answer 19

• the right to a public hearing
• within reasonable time
• the presumption of Innocence their minimum rights for those charged with criminal offence

Question 20

article 8: the right to respect for private and family life

Answer 20

• respect for private life, family life, home, correspondence
  > private life:
• the right to live privately without state interference
• multiple aspects of physical and social identity
• the state may have to assist you to participate in society in order to protect your article 8 rights

article 8 has been used to give effect to certain environmental protections

Question 21

the margin of appreciation

Answer 21

a doctrine which considers the amount of discretion a state is givne when the ECIHR considers breaching of qualified rights
- states are responsible for upholding the convention themselves
- the margin afforded may be wide or narrow
- the margin afforded to states may change over time societal norms and standards change

Question 22

factors effecting the margin of appreciation

Answer 22

• the nature/importance of the issue in question
• the nature/importance of the general interest/aim
• the difficulty of judging a particular issue in a state/need for resources

Question 23

doctrine of proportionality

Answer 23

a persons human rights may only be restricted if:
- there is a domestic law which permits the restriction and
- there is a legitimate aim and
- there is a pressing social need for the restriction which goes no further than is necessary (proportionate)