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Human Rights

Paper 3 - Section B

Sample Questions

Paper 3; Section A and Section B

Paper 3

5 Key Rights

Section B

Students must know about the role and impact of the Human Rights Act 1998

What are human rights?

The Development of Human Rights

Human rights are those rights and freedoms considered essential in a democratic society. At their simplest they are rights which belong to everyone.

Human rights are standards that recognize and protect the dignity of all human beings. Human rights govern how individual human beings live in society and with each other, as well as their relationship with the State and the obligations that the State have towards them.

Human rights law obliges governments to do some things, and prevents them from doing others. Individuals also have responsibilities: in using their human rights, they must respect the rights of others. No government, group or individual person has the right to do anything that violates another’s rights.

They are the rights and freedoms that every human being is entitled regardless of their sex, race, nationality, religion or ethnicity. They are universal, inalienable and indivisible.

The nature of these rights will vary according to different legal systems but there are core freedoms which are almost universally accepted such as freedom of expression, the right to a fair trial, freedom from torture and inhuman and degrading treatment, freedom of association and freedom of assembly.

Resources

Resources - Chapters 17 and 18 Textbook (book 2). Reminder about electronic version - access through the College network (horizon). The link is in google classroom (in the section headed classwork / useful Information / online textbook).

Also Flipped Law - Human Rights - Theory of Human Rights and Protection of Rights and Freedoms. First video (10 mins).

7th August Fay shared a summary doc in google classroom - "Development of Righhts"

Link here https://docs.google.com/document/d/1mH-odws9W5iU-6OX3XeukoeQYLJr1xak2ld6QVwgObs/edit

Materials shared with you

What are human rights - Introductory Clips to watch

Useful 2 minute intro

Watch the first 2mins 20 only

Introductory Clips

Australian cartoon clip explaining human rights cartoon (only watch first 2mins 30).

Other useful clips

Explanation from Scottish Human Rights Commission. Note down some of the key points from this presentation. It doesnt matter this is a Scottish presentation.

Other clips

The history of human rights

History- the development of Human Rights

Historical Development

Historically, the rights and freedoms of the people were determined by those who exercised power.

In the absence of democracy, there was little protection against the arbitrary use of power and breach of the rights and freedoms we now take for granted.

The term "human rights" really only emerged in the middle of the 20th century but that does not mean that rights and freedoms we now call human rights were not recognised before this time.

Over time, core rights and freedoms were recognised in the UK by certain important laws made by Parliament or through decisions in the courts and power shifted away from the Monarchy to Parliament.

This protection has been supplemented by international law.

Domestic Laws

Development of human rights

For example, in 1919 women were granted the right to vote for the first time (Representation of the People Act - an example of a political right). In 1970 the Equal Pay Act was passed and in 1976 the Sex Discrimination Act (both examples of social rights).

In addition to domestic laws, there are also international laws on human rights - most importantly the European Convention on Human Rights (ECHR).

So, today rights and freedoms are protected on two levels. Firstly under national (domestic laws) and secondly through the European Convention on Human Rights (which is now part of our law since the Human Rights Act 1998)

Natural Law and Natural Rights

In terms of theory, the human rights evolved from the concept of natural law.

This is the idea that there is some higher order of morality by which ordinary law can be judged.

An unjust law would be considered a breach of natural law.

Natural law theory dates back to early Roman and Greek thinkers and Christian religious philosophy. Ideas of natural rights evolved from the idea of natural law. Natural rights theory placing greater emphasis on the individual rather than society as a whole.

Natural Rights

More on the background

More on the background to human rights

The modern conception of rights can be traced back to the Enlightenment in political philosophy and the movement, primarily in England, France, and the United States.

The Enlightenment refers to a period in the 17th and 18th Centuries when the dominant movement among thinkers and theorists were ideas of reason and individualism.

This thinking heavily influenced the emergence of movements to establish limited forms of representative government that would respect the freedom of individual citizens (e.g. in America and France).

Universal, Indivisible, Inalienable

Human rights belong to each and every one of us equally.

Human rights are universal - meaning apply to all persons on the basis of them being human beings irrespective of any other factors. They are universal as the rights exist regardless of where they live, their gender or race, or their religious, cultural or ethnic background.

"All human beings are born free and equal in dignity and rights" (Universal Declaration of Human Rights - 1948)

"… rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, color, religion, language, or any other status. We are all equally entitled to our human rights without discrimination." (United Nations High Commissioner for Human Rights)

Human rights are indivisible - meaning they cannot be selectively recognised or granted. They come as a "package" and are interconnected and are all considered important.

Human rights are inalienable - they cannot be taken away except in specific situations and according to due process (clear legal process which open and transparent). An example is the right to liberty may be restricted if a person is found guilty of a crime by a court of law.

Civil and Political Rights

There are different categories of rights. You just need to be aware of this as background understanding

Civil and Political Rights

Social , economic and cultural rights

Social, Economic and Cultural Rights

Positive and Negative models for the protection of rights

Positive and Negative Models

Prior to the Human Rights Act 1998 the UK had a residual or negative basis for the protection of freedoms. What this means is that freedoms existed but on the basis that people were free to do anything the law did not prevent or restrict them from doing.

In contrast, many other countries (e.g. the USA) have a Bill of Rights or written Constitution setting out key rights & freedoms. In other words, a positive basis for protection of those rights - because those rights and freedoms were written down.

In the UK there were some important statutes setting down important rights e.g. voting rights to the right to equal pay and also rights recognised at common law (case law) BUT there was no single law or document setting out the rights and freedoms of the British people.

Under the UK system people were free to do anything the law did not prevent them from doing.

So, freedom of speech, existed to the extent to which the civil or criminal law did not restrict it (e.g. defamation, incitement to racial hatred, outraging public decency, threatening behaviour etc).

Since the passing of the Human Rights Act 1998, we now have a positive basis for the protection of hum,an rights as we have a document (law) setting down what these fundamental rights are.

More detail

Absolute, Limited and Qualified Rights

Some rights are absolute. This means they can never be restricted or limited in any way. Examples in the European Convention include the right to life (article 2) the right not to be subject to torture, inhuman or degrading treatment (article 3).

Other rights can limited on grounds of being necessary in a democratic society for certain legitimate aims. A limited right can only be restricted in very few circumstances whereas a qualified right can restricted in a greater number of situations.

Absolute, Limited and Qualified Rights

The European Convention on Human Rights

European Convention on Human Rights

The ECHR is a European charter of fundamental human rights. It aims to protect human rights across all European countries by imposing obligations on States to protect and uphold the Convention rights. It can be thought of as a European Bill of Rights - laying down the fundamental human rights all citizens across Europe are entitled to. https://www.echr.coe.int/Documents/Convention_ENG.pdf

It was created in 1950 after WW2 and influenced by the Universal Declaration of Human Rights drawn up by the United Nations in 1948.

* the ECHR is not the same as the EU - the two are separate and have different functions.

The UN Universal Declaration of Human Rights was drawn up after WW2 in 1948.

It was the first time nations gathered together and agreed a universal set of fundamental rights and freedoms. It set down 20 rights and freedoms.

It influenced the creation of the European Convention on Human Rights (ECHR) which set down the rights and frredoms of citizens of European countries. What makes the ECHR significant is that unlike the UDHR it is enforceable and there is a court responsible for ruling on its enforcement - the European Court of Human Rights. The UDHRs does not have this mechanism.

More on the ECHR

Key Facts on the ECHR

The European Convention on Human Rights (ECHR) was drafted in 1950. It is a European wide Charter setting out fundamental rights and freedoms. The UK become a signatory of the ECHR in 1951.

The ECHR was drawn up by the Council of Europe – an organisation founded to protect human rights and promote democracy and the rule of law. The Council was established in 1949 and is entirely separate from the European Union.

Today it comprises 47 member states and some 800 million citizens.

The European Court of Human Rights (ECtHRs) hears cases concerning breach of the Convention. It was set up in 1959.

Under article 46 the United Kingdom is obliged to implement judgments of the European Court of Human Rights.

Key facts on the ECHR

The European Court of Human Rights

European Court of Human Rights

The court responsible for ruling on the interpretation of the European Convention.

It is based in Strasbourg (France) and it has 47 Judges who hear cases in Chambers of 3,7 or 17 depending on the nature and importance of the case. Important case are heard by a Grand Chamber (17 judges).

Rulings of the court are binding (article 46).

https://www.echr.coe.int/Documents/50Questions_ENG.pdf

The Human Rights Act 1998

Human Rights Act 1998

The Human Rights Act 1998 brought (incorporated) the European Convention of Human Right into domestic law. This means that the Convention is part of our law and can be enforced in the UK without the need to go to the European Court of Human Rights in Strasbourg.

The HRA came into force in 2000 and has had a transformative effect on how we protect rights in the UK.

Watch these short videos

https://eachother.org.uk/what-is-the-human-rights-act-and-why-does-it-matter/

What next?

What Next?

Watch the flipped law videos introducing human rights

Watch the clips on this prezi

Complete the google form Quiz

Compete a coggle on the key terms (link provided - you just need to copy it and complete / add to it) or your own grid sheet or mind map and upload a photo to the google classroom.

Human Rights Act 1998

The Human Rights Act 1998 (HRA) came into effect in October 2000 as part of the then Labour Governments manifesto pledge of - 'bringing rights home.' It has had a significant impact on the UK's legal system.

The HRA places human rights at the heart of the English Legal System. It aims to ensure that fundamental human rights such as the right to liberty as set out in the European Convention on Human Rights are respected. Now if a public authority violates such rights, the individual affected (victim) can challenge this violation within our domestic courts.

The UK ratified the ECHR in 1951, it came into effect in 1953. In 1966 UK Citizens were granted the right to individual petition - the right to apply to the European Court of Human Rights (ECtHR) in Strasbourg, France for a judgement if their human rights were violated. However, they had to exhaust all domestic remedies first - so it was time consuming (around 4 - 5 years), expensive due to the legal fees involved and there was no guarantee of success, this meant very few people did so.

The HRA gives effect to the ECHR within UK law. Now, anyone who falls within the UK's jurisdiction can challenge a violation of their rights under the Convention in our domestic courts, and courts can directly apply the Convention rights to cases they are considering when reaching their judgement. Plus, the victim can still petition Strasbourg as a last resort.

Before the HRA all judges could do was use the Convention to help them interpret ambiguous wording or clauses in the law but they couldn't decide a case based purely on a Convention right, now they can.

Read: Book 2 Chapter 18 - ebook link https://ebookcentral.proquest.com/lib/qesfc-ebooks/detail.action?docID=5451310

The Human Rights Act 1998 + the impact of the HRA.

What is the ECHR?

The European Convention on Human Rights

Have a look at the ECHR

https://www.echr.coe.int/Documents/Convention_ENG.pdf

The Human Rights Act

Watch the videos to help you to consolidate your understanding of the HRA - make sure you also watch the FL video and make notes as you watch it: https://www.flippedlaw.com/human-rights-act-1998.html (QE students should know the pass-codes - if you don't ask your teacher).

The Human Rights Act 1998

https://www.legislation.gov.uk/ukpga/1998/42/contents

Now take a good look at the Human Rights Act 1998

s.6 HRA

s.6 HRA holds that it is unlawful for a public authority to act (or fail to act) in a way that is not compatible with the rights of the Convention, unless it is authorised to do so by an Act of Parliament. So s.6 HRA imposes a duty (obligation) on public authorities to act in a way that is compatible with the Convention rights.

Therefore, the HRA helps to minimise the arbitrary abuse of power by the state, ensuring that our fundamental human rights are more likely to be respected. If they aren't the individual affected 'victim' can challenge this violation in our national courts. This is described as a vertical relationship between the state and the individual as opposed to a horizontal relationship which covers relations between private individuals.

An example of a public body violating human rights can be illustrated by the case of Rabone v Pennine NHS Trust.

Public authorities include courts and tribunals and any person whose functions are of a public nature, such as the police, government departments e.g. the Home Office and organisations that are private but perform a public function e.g. prisons, probation service etc.

However, it does not include Parliament.

Extension reading: https://publications.parliament.uk/pa/jt200304/jtselect/jtrights/39/39.pdf

https://www.wardhadaway.com/updates/what-defines-a-public-authority-and-why-it-matters/

Rabone v Pennine Care NHS Trust (2012)

In 2005 Ms Rabone (aged 24) committed suicide.

She had been voluntarily admitted to a psychiatric ward at Stepping Hill Hospital in 2004 where it was noted that should she attempt or demand to leave she should be assessed under the Mental Health Act 1983.

Ms Rabone was released on home leave in April 2005, despite the concerns of her parents. One day later she took her own life.

The UKSC agreed unanimously that Pennine Trust's policy violated Ms Rabone's right to life - Article 2 ECHR and as a result their procedures were reviewed.

For more detail go to: http://ukscblog.com/case-comment-rabone-anor-v-pennine-care-nhs-trust-2012-uksc-2/

Other examples

Evans v UK (2007) – the father of frozen embryos withdrew his consent to allow Evans to access them. She argued that the Human Fertilisation and Embryology Authority was in breach of Articles 2, 8 or 14. However, the ECtHR held that there was not a violation of her rights, this is because the court generally allows the member states a wide margin of appreciation when it comes to striking a balance between competing Convention rights.

Dickson v UK (2007) the public body here was the prison authority - the complainants were a husband and wife. They wanted a child and because Mr Evans was serving a sentence of life imprisonment they were refused support for artificial insemination treatment.; They argued that the prison authority was in breach of Article 8 right to family and private life. The ECtHR ruled that no breach was established. The requirements for compliance with article 8 were not clear cut, and facilities varied widely throughout the EU. The UK policy allowed IVF for serving prisoners in exceptional circumstances, and it was justified by welfare concerns and the maintenance of public confidence to refuse support in this case. The Dicksons's application had been carefully considered and refusal to support the treatment could not be shown to be arbitrary or unreasonable.

Alder v UK (2011) – the public authority in this case was the police. Father-of-two Christopher Alder, 37, choked to death on the floor in a pool of his own blood, urine and excrement at Hull Police Station in April 1998 while four officers stood, watched, chatted and joked. The Human Rights organisation Liberty acted for Mr Alder’s sister, and took a case to the ECtHR arguing breach of Article 2 Right to Life and Article 3 Right not to be subjected to inhuman or degrading treatment. The Government fought the case until the final stages when it lodged its official apology with the Strasbourg court. It is believed to have been the first time the UK admitted violating Articles 2 and 3 ECHR.

s.7 HRA 1998 - the victim of a violation of their rights by a public authority can now challenge this violation directly in our national courts.

This is an advantage of the HRA - before October 2000 the 'victim' only had the right to petition the European Court of Human Rights (ECtHR) in Strasbourg, France, a right granted in 1966 if all domestic remedies had been exhausted first. It would typically take around 4 -5 years before a petition could be lodged, legal fees are expensive and there was no guarantee of success - so few people petitioned the ECtHR. Now that violations by a public authority can be challenged in domestic courts people are more likely to assert their rights.

They can still petition the ECtHR if all their rights of challenge in our national courts have been exhausted, so they retain the opportunity, if permission is granted for a final review.

Extension: Petitions to ECtHR 2019 https://www.echr.coe.int/Documents/Stats_analysis_2019_ENG.pdf

s.7 HRA

What can the national court do?

Remedies

s.8 HRA states the court may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.

The remedies depend on the type of court action taken, the most common are financial compensation if the victim has suffered a loss as a result of the violation or an injunction.

If the victim pursues Judicial Review - the court looks at how the decision was made rather than if it was the right decision. If the court believes the decision is wrong it can:

Cancel the decision and make the public authority make it again (a quashing order);

Award compensation where the victim has suffered a loss; or

Impose a mandatory order (order the public authority to do something) or a prohibitory order (order them not to do something).

See later for further more detailed information on Judicial Review

s.2 HRA

Take into account judgements of the ECtHR

s.2 HRA obliges our domestic court or tribunal to ‘take into account the judgements, decisions and opinions of the ECtHR.

There is divided opinion amongst the judiciary, academics and politicians as to precisely what this means. Taking into account a decision, doesn't necessarily mean it has to be followed. Their decisions are "merely persuasive" (Lord Hoffman). However, in 2004 Lord Bingham said no national court should "without strong reason dilute or weaken the effect of the Strasbourg case law" in R (Ullah) v Special Adjudicator, a case involving the deportation of an individual to a country with known human rights abuses.

Thus, although Strasbourg judgements aren't "strictly binding" on the courts they are often taken into account because of the respect placed on protecting individual human rights.

s.3 HRA

Interpretive obligation

S.3 HRA places an ‘interpretive obligation’ on the courts. Now 'in so far as it is possible to do so' judges must interpret primary and secondary legislation in a way that is compatible with the Convention rights.

However, if the wording of the Act means that this isn't possible, then all the judges can do is invite Parliament to review the law using s.4 HRA.

In Ghiadin v Godin-Mendoza 2004 the Rent Act 1977 was in violation of Art 8 ECHR right to a private and family life. The House of Lords interpreted the Act to include homosexual couples.

https://www.lawteacher.net/cases/ghaidan-v-godin-mendoza.php

Ghiandin v Godin Mendoza (2014)

The challenge was The grounds of challenge that AFR is not compatible with the right to respect for private life under Article 8 of the European

Convention on Human Rights (“the Convention”), which is one of the Convention

rights set out in Sch.1 to the Human Rights Act 1998

2020 - Jeff Bridges case on the use of Automated Facial Recognition Software

https://www.bbc.co.uk/news/uk-wales-53734716?intlink_from_url=https://www.bbc.co.uk/news/topics/c12jd8v541gt/facial-recognition&link_location=live-reporting-story

S.4 HRA - declaration of incompatibility

If it is not possible to interpret the law in a way that is compatible with the Convention rights the court can issue a ‘declaration of incompatibility.’

s.4 HRA

Declaration of incompatibility

The Belmarsh Case (2004)

In the Belmarsh Case (2004), foreign nationals suspected of acts of terrorism were detained without charge or trial under the Anti- Terrorism, Crime and Security Act 2001.

This Act was found to be in breach of Art 5 ECHR right to liberty and Art 14 ECHR right not to be discriminated against. Using s.4 of the HRA the UKHL (now Supreme Court) highlighted the breach, issuing a declaration of incompatibility. As a result the government changed the law in the Prevention of Terrorism Act 2005.

The correct case name is: A and others v Secretary of State for the Home Department [2004]

Extension: Watch the videos

Other examples

Bellinger v Bellinger (2003) - the parties went through a form of marriage, but Mrs Bellinger had previously undergone gender re-assignment surgery. The House of Lords ruled that Section 11(c) of the Rent Act 1973 Act which required a marriage to be between a male and a female was incompatible with the claimant’s human rights (Articles 8 and 12 – Right to family and private life and Right to marry). Mrs Bellinger, a trans-sexual female, born and registered as a male at birth, could not validly contract a marriage with another male. This led to the led to the Gender Recognition Act 2005.

Diane Blood (2003) had children through artificial insemination (using her dead partners frozen sperm). She challenged the Human Fertilisation and Embryology Act (HFEA) 1990 which did not permit the name of the deceased father of her children to be given on the birth certificate. The court ruled that the 1990 Act breached Art 8 (right to family life) and as a result the law was amended by the Human Fertilisation and Embryology (Deceased Fathers) Act 2003.

See this report for recent examples: see page 36: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/842553/responding-human-rights-judgments-2019.pdf

s.10 allows a remedial order to be made whereby the minister may introduce a statutory instrument to amend or repeal the offending provision.

There is a “fast track” procedure of 40 days during which the proposed statutory instrument is laid before both Houses of Parliament before passing into law.

s.10 HRA

Remedial order

s.19 HRA

Statement of compatibility

Under s.19 every Government Bill is required, on publication to include a statement from the Minister responsible for the Bill as to whether in his/her opinion the Bill is compatible with the Convention rights.

This helps to ensure that Ministers bear in mind human rights when drawing up proposals for law as Bills which seek to overtly defy human rights will attract negative publicity which the Government will try to avoid.

However, s.19 doesn't apply to Private Members Bills, so we are reliant on the Joint Committee on Human Rights who scrutinise such Bills to challenge the sponsor if there is an issue, they will generally refer any issues back to the House.

Extension: https://publications.parliament.uk/pa/jt200203/jtselect/jtrights/24/2403.htm

Add A03 - analysis & evaluation

Impact of the HRA

An important feature of the 25 mark discuss style questions on Human Rights is A03. In addition to A01 (knowledge and understanding) aim to include 4 well developed points which demonstrate a 'sustained focus' on the question set, plus a conclusion which specifically addresses the question.

A03 can attract up to 15 marks. Move beyond merely describing the HRA and add the A03. Today's session is designed to introduce you to the debate surrounding the HRA.

Some evaluation (A03) has already been blended with the A01 points discussed in this Prezi, but you need to add more to get good marks.

You can get up to 10 marks for A01 + up to 15 for A03 = 25

23+ = A*, 20 - 22 = A, 18 - 29 = B, 15 - 17 = C, 13 - 14 = D, 11 - 12 = E, 0 - 10 = U (fail).

Marking criteria

The HRA has had a positive impact on UK law, it is of constitutional importance. We now have positive basis for the protection of human rights and now all public authorities must act in a way that is compatible with the Convention rights (s.6). This means they are far more likely to respect rights such as liberty (Article 5 ECHR) or the right to a fair trial (Article 6). If they don't the 'victim' can challenge this violation directly in our national courts (s.7) which can attract negative publicity and damage our human rights record so public bodies are more likely to take more care to respect human rights.

The HRA respects fundamental human rights, and the Rule of Law

Although the right to individual petition to the ECtHR was granted in 1966, all domestic remedies had to be exhausted first. This proved time consuming and expensive and there was no guarantee of success. In one case the violation took place in 1997 but the decision of the ECtHR was not given until 2006 (Wainwright v UK) https://www.5rb.com/case/wainwright-v-united-kingdom/.

Thus, the HRA ensures it is easier, cheaper and more time efficient to challenge a violation of human rights, which helps to reduce arbitrary abuse of power by the state.

Furthermore, the HRA improves access to justice which is an important feature of the Rule of Law explained by AV Dicey in 1885.

Watch the video so you understand the Rule of Law

https://www.flippedlaw.com/the-three-principles.html

A reminder of the Rule of Law and theory on the separation of powers.

Critics argue that the HRA has a negative impact on Parliamentary Sovereignty - which states that law made by Parliament should be more important than any other source of law. However, on a positive note, supporters of the HRA argue sovereignty isn't undermined s.6 HRA states public authorities must act in a way that is compatible with the Convention rights but under s.6(3) Parliament is explicitly excluded, so Parliament itself isn't bound.

The HRA and Parliamentary supremacy

Also, s.19 normally requires ministers to issue a statement of compatibility when legislation is presented to Parliament but, there is no requirement that it is compatible. This may be necessary if it is considered to be in the wider public interest to sideline convention rights, such as in cases involving national security.

Also

Furthermore, although under s.4 the court can declare legislation approved by Parliament incompatible with the ECHR they don't have the power to strike the legislation down, they can only invite Parliament to consider the issue and Parliament is free to decide whether to amend or repeal the law, thus the HRA acts as a check and balance on Parliament, but its supremacy isn't compromised. Also the judges use the powers under s.4 sparingly, it has only been used 42 times since October 2000 and July 2019.

Furthermore

Finally

Finally, Parliament approved the HRA and Parliament retains the power to repeal it as we have seen recently by their decision to repeal the European Communities Act 1972.

Extension videos

HRA applies to anyone who falls within the UK's jurisdiction!

A further positive impact of the HRA is that Article 1 of the ECHR states that signatories to the Convention have obligations to persons “within their jurisdiction. This means that anyone who falls within UK jurisdiction can challenge a violation of their human rights, assuming the violation is caused by a public authority.

However, for some, this is a negative impact as it includes anyone on British territory, it is broader than just British Nationals. It includes those here on holiday, illegal immigrants, asylum seekers and so forth which isn't always popular with everyone.

Cases such as that of Abu Quatada are used by the right wing press to whip up discontent in society. Further, the HRA has been labeled a 'criminals charter' because those convicted of a crime can also argue a violation of Convention rights.

On the other hand, others agree that human rights should apply to everyone, because they are 'human', so it shouldn't matter who a person is, or where they are from, member states should respect everyone's fundamental human rights.

Abu Quatada (asylum seeker), a radical cleric who was in the UK argued that his deportation to Jordan engaged Articles 3, 5, 6 & 13.

The legal battle that followed with the Home Office resulted in the spending of £1.7 million of taxpayers money. This included advocates fees, disbursements and a Legal Aid bill of £648,000 (Guardian, 2013) He was eventually deported in 2013.

Example: Abu Quatada

The most basic principle of human rights is that they apply to everybody. This is because they apply to anyone that is ‘human’. This means human rights are afforded equally to prisoners.

The ECHR recognises that there are situations where some rights can be restricted if they are outweighed by the interests of society. For example, the ECHR recognises that committing a crime can legitimately result in a person being deprived of their liberty (Article 5 ECHR). However, some rights are absolute, such as the right to life (Article 2) and the right to a fair trial (Article 6) and even prisoners have the right to have these rights respected.

One right which has caused controversy is whether prisoners should have the right to vote. The ECtHR has considered this question 6 times https://www.echr.coe.int/Documents/FS_Prisoners_vote_ENG.pdf First in the case of Hirst v UK in 2005.

On each occasion the ECtHR said the UK’s blanket ban on all prisoners taking part in elections violates the right to free elections and is not defensible on grounds of the prevention of crime. Eventually some minor changes were made and those on remand can now vote, but those in prison are still denied the right to vote.

Prisoners relying on Convention rights

The HRA also arguably impacts on the theory on the separation of powers as explained by Montesquieu in the 18th Century. The role of the judges is to interpret and uphold the law and their role should not overlap with that of the Government (the executive) and Parliament (the legislative), they should be separate and independent of one another.

Impact on the theory on the separation of powers

However, s.3 HRA states that judges must interpret law in a way that is compatible with convention rights and s.2 states they must take into account judgements and opinions of the ECtHR which leads to a purposive approach to interpretation. The judiciary are able to look beyond the words and sections of an Act to draw an interpretation that they believe Parliament would have intended. Thus, the HRA arguably gives the judges the power to shape the law in a way that may conflict with the views of Parliament.

However,

Furthermore, as Parliament by virtue of the HRA have obliged the judiciary to take into account Strasbourg jurisprudence and to interpret law in light of the Convention rights, Parliament is in effect telling the judges how to do their job, which is further in conflict with the theory on the separation of powers!

Furthermore,

s.2 obliges the court to take into account Strasbourg jurisprudence and s.3 requires it to interpret legislation in a way that is compatible with convention rights 'insofar as it is possible to do so'. Thus, judges don't have to blindly follow Strasbourg jurisprudence. However, as noted by Lord Bingham in R (Ullah) v Special Adjudicator, a case involving the deportation of an individual to a country with known human rights abuses, no national court should "without strong reason dilute or weaken the effect of the Strasbourg case law."

Although Strasbourg judgements aren't "strictly binding" on the courts they are often taken into account as they are carefully considered. This can be seen by the judgements in cases such as Ghiadin v Godin Mendoza.

Influence of Strasbourg jurisprudence

However, it should be noted that even if the case reaches the ECtHR the court doesn't always find in favour of the applicant, they often balance competing rights which includes the right of the state to regulate society before reaching a decision. For example in Austin v UK the ECtHR adopting a broad margin of appreciation declared that the police tactic of ‘kettling’ was lawful. Other examples of the ECtHR not reaching a finding against the UK are Armstrong v UK – the Criminal Justice Act 2003 didn’t violate Article 6 ECHR and in Laskey & Others v UK – the ECtHR held that not allowing consent to harm for the purposes of sexual pleasure was not a violation of Article 8

However,

On the other hand, sometimes is does find in favour of the applicant as seen in Hirst v UK – blanket ban on prisoners right to vote is a violation and in A v UK – the law not specifying the limits of reasonable chastisement was a violation of children’s rights – led to reform in Children Act 2004.

Although the UK isn't obliged to change domestic law in light of judgements from the ECtHR they very often do lead to changes in the law, so we are eventually more compliant with convention rights.

On the other hand,

Ghiadin v Godin Mendoza

Replace the HRA with a British Bill of Rights?

You will look at this on Monday - if you would like to do so, explore this idea by engaging in independent research before the session which will begin at 2pm.

Discuss the key provisions of the Human Rights Act 1998 and the criticisms made of them.

To what extent are the criticisms valid? 25 marks

Refer to pages 9 and 10: https://www.ocr.org.uk/Images/468481-further-law-section-b-option-1-human-rights-law.pdf

Advice: A strength of this answer is that it does answer the question set, however it is quite simplistic, although OCR have stated it is a Level 4 answer we would recommend that you strengthen it with reference to extra examples, key points to help you to secure the higher marks.

When we complete our teaching on the background information on human rights (wait for the lesson on whether we should retain the HRA or replace it with a Bill or Rights) - look at the information again and then if you feel confident enough to do so, produce your own version of an answer to the above question. Then once you have finished studying each of the individual articles (5, 6, 8, 10 + 11) decide if you want to refine your answer, at that point you can share it with us.

25 marks = 25/30 minutes of writing. A key skill in preparing for exams is to ensure that you can manage to produce your answers in timed conditions.

Sample OCR question

Human Rights or Bill of Rights debate

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