Beginning Human Rights Law

Glossary

CHAPTER 2

Protocol – an agreement adding additional matter to a treaty after it has been brought into effect.

Absolute rights – rights which apply without balancing the rights-bearer’s interests with that of others or with the social good.

Qualified rights – rights which can be interfered with in the public interest or to protect the rights and interests of others.

The Council of Europe – a pan-European organisation formed at the end of the Second World War to promote democracy, human rights and the rule of law.

The European Court of Human Rights – an organ on the Council of Europe with responsibility for deciding allegations that a state has breached the European Convention on Human Rights.

CHAPTER 3

Bill of Rights – informal name for a list of rights and freedoms which are to have legal protection. Strong versions will allow a court to invalidate an Act of Parliament; weaker versions do not go that far. The Bill of Rights 1689 is an Act of Parliament which expresses the settlement reached with William III in 1688. Its focus is on ensuring the King acts according to law and enhancing the power of Parliament.

Human Rights Act 1998 – an Act of Parliament which authorises the courts in the UK to give further effect to the rights in the ECHR.

“Mirror principle” - the idea that the interpretation of rights in the ECHR should be same as that given by the European Court of Human Rights. British courts should not be more “generous” to applicants than the European court would be.

Declaration of incompatibility – a declaration made by a senior court in the UK to the effect that a provision of UK statutory law cannot be read and given effect in a way that is incompatible with the Convention. It does not change the law or alter the rights of the applicant.

Public authority – a government body (inclusively defined) or any other organisation in so far as it is exercising public functions; public authorities are required to act compatibly with Convention rights.

CHAPTER 4

Ancillary rights – rights which relate to the way the substantive rights in the Convention are to be applied (e.g. without discrimination – article 14).

Margin of appreciation - the space within which member states can choose the way in which they give effect to particular rights.

Proportionality – the legal doctrine that courts must assess whether states have struck a fair balance between competing interests when considering the way particular rights are applied or freedoms interfered with.

Deference - the degree to which a court should accept the view of a public body on the proper weight to give to an interest as distinct to deciding it for themselves.

Derogation – suspending rights. This can only be done if the instrument containing the rights allows it (as does article 15 ECHR).

CHAPTER 5

Lethal force – the use of force which may be intended to kill or which has death as one of its foreseeable consequences.

Positive duties - where the state has duties to do things (which might involve spending money) rather than just not do things (like torture).

Injunction – a court remedy. The court orders someone (this can include a state agent or agency) not to do something; occasionally it can be an order to do something. Breach is contempt of court.

CHAPTER 6

Arbitrary – something is “arbitrary” if it is done for no good or relevant or appropriate reason.

Liberal and democratic society - a society which in its core public values, the values which inform the way its main institutions work, values liberalism and democracy. Liberalism lays stress on individuals, their rights and freedoms; whilst democracy lays stress on participation by the people in government. Sometimes liberalism and democracy can (or appear to) be in tension with one another as where, for example, a majority wishes to pursue a policy at odds with an individual’s rights.

Autonomous concepts - these are terms in the ECHR which have been given a special meaning by the European Court of Human Rights which applies only to the Convention. The meaning is “autonomous” in the sense that it is special to the Convention and not dependant on how the same concept may be understood elsewhere – the legal systems of signatory states, for example. The instance given in Chapter 6 is the concept of “law”.

Deprivation of liberty - depriving someone of their freedom to move around as they please. Regarding article 5 it is not confined to people being incarcerated (put in prison).

Internment - the policy of arresting and imprisoning suspects on suspicion, without charging and trying them for a criminal offence. It has been used against enemy aliens during war and people suspected of being active members of terrorist groups.

Review - in the legal context this is the process by which a judge can scrutinise whether some action (such as detaining a person) is done lawfully. The judge is not deciding whether they ought to be detained but whether detaining them is allowed by law.

Bail - the release of a suspect, sometimes on the basis of a financial guarantee, for the period between when they are charged and when they come to trial.

CHAPTER 7

Magna Carta – the “Great Charter”. First signed in 1215. It represents an early attempt at limiting the powers of the King in the name of protecting some rights and freedoms of the people (in the case of Magna Carta these were mainly the freedoms and privileges of Barons). It is seen as one of the forerunners of written constitutions and limited government. Though it swiftly lost all legal validity it was later re-issued and the version issued in 1297 by Edward I is treated as a statute. Its few un-repealed clauses remain, today, as part of the law of England.

Common law - the rules of law formulated by judges deciding the cases brought before them on the basis of applying rules laid down in earlier, similar cases; or by extrapolating from such cases when new cases or situations arise.

“Equality of arms” - the legal principle that all sides, including the judge, in a trial or hearing should have equal access to the evidence by which the outcome will be determined.

Inherent rights – the more specific rights that are contained in a general right; an example is that the right to equality of arms is a specific right that is inherent in, part of, the idea of a “fair hearing”. An alternative phrase meaning the same thing would be “implied rights”.

Adversarial system – a trial system based on a neutral judge controlling proceedings with the evidence confined to that produced by the parties. The term is also used to describe general character of a trial or hearing which ensures that a person who may suffer in body or goods has a right to be heard and answer the case against him or her produced by the prosecution or other party.

Natural justice – name given to rules of fairness developed by the common law. In essence: a person has a right to a fair hearing before an impartial tribunal.

CHAPTER 8

Qualified right – a right which is subject to reasonable interference. Under the ECHR privacy, manifestations of belief, expression, association and assembly are all matters in respect of which interference by the authorities may be justified. The second paragraphs of articles 8, 9, 10 and 11, respectively, lay down the grounds for such justification.

Deference - the degree to which a court should accept the view of a public body on the proper weight to give to an interest as distinct to deciding it for themselves. Particularly relevant in respect of the qualified rights (articles 8-11).

Deportation – the legal expulsion of foreign nationals. In the UK this is on the basis that they have committed a crime and have completed their punishment or that their presence in the UK is believed by the Home Secretary to be against the public interest. Deportation can be compared with removal (e.g. of someone not entitled to be in the UK) and extradition (sending a wanted fugitive to the country which seeks to put them on trial).

CHAPTER 9

Kettling – a police tactic used in the context of policing political demonstrations which might turn violent. Demonstrators are hemmed in a controlled area by the police and not allowed to leave until the police give their consent.

Discretion – a term which describes the width of the power enjoyed by the authorities to decide for themselves what actions to take. A broad discretion is one which appears to leave the authorities free to act more or less how they wish with very little external control.

Privilege – in a legal context: immunity from legal action. Privilege can be “absolute” in the sense that of being free from all forms of civil or criminal legal action (as MPs speaking in debates in Parliament); or “qualified” in the sense of being free only from a civil action for defamation (as the media if publishing a story in the public interest).

CHAPTER 10

“Manifestation” of a belief – demonstration of belief in terms, for example, of wearing particular forms of dress or eating only particular diets.

Atheist – someone who does not believe in the existence of God.

Sharia’h – Islamic law and moral code.

Neutrality - in a dispute a neutral is someone who does not take sides. A neutral state is one which tolerates a whole range of different opinions on matters without, itself, standing for any of them; but accepts responsibility for securing means by which differing opinions can flourish and disputes be peacefully resolved.