Chapter 2

On-the-spot question

Make outline notes for a speech in which you discuss whether there is a real tension between human rights and democracy

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Answer

There might be thought to be a tension because human rights are universal values which are binding on states, including a legislature. They are enforced by the judiciary.

On the other hand the will of the people is represented in the legislature. There can be conflicts between majority opinion reflected in the view of the legislature and the requirements of human rights as put into effect by judges.

But limits to majority rule are inherent in human rights. This is because human rights protect all persons. Human rights protect the interests of individuals and minorities including those who are unpopular.

Many human rights are not absolute but require a judgment about, for example, whether some interference with an individual’s rights is necessary. Such judgments have political implications and consequences. This can cause tension between the courts and the legislature and/or the executive.

However these tensions between the courts and the legislature and executive may be less real that they may seem. Under the HRA, for instance, there is room for a more cooperative relationship - a form of “dialogue” between the courts and democratic representatives.

In any case there is not necessarily any underlying conflict because human rights also protect the political rights and procedures necessary for an effective democracy – e.g. the right to freedom of expression and freedom of association and the right to vote.

On-the-spot question

Summarise the way in which legal protection of human rights is achieved – pay particular attention to the significance of the  “level” at which protection is available.

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Answer

Human rights can be protected at the level of global international law. This is mainly done by treaty entered into by states (such as the International Covenant on Civil and Political Rights). Such treaties normally impose an obligation on states to provide for particular rights in their domestic law.  One problem is that this does not protect individuals in “bad” states that for one reason or another have chosen not to sign the treaty. Also there are difficulties about remedies (for example states have to agree to allow their populations to bring cases); they can also raise questions about the universal nature of human rights.

Human rights can also be protected at the regional level though, for instance, a regional Charter and Court (such as the Inter-American Court of Human Rights). This brings the enforcement of rights closer to the people and enables rights to be more acceptable because they embody cultural values. The ECHR is (many say) the most successful regional system for enforcing human rights.

Primary responsibility for human rights lies with the states. They must ensure that their own laws and practices are consistent with human rights and may need, also, to regulate the activities of private persons and companies if they interfere with the rights of others. Of course states can themselves violate human rights, which is why access to a regional or international procedure is so important.

On-the-spot question

What is the Council of Europe, what does it do and how it is different from the European Union?

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Answer

A pan-European body established after the Second World War to promote the values of pluralism, democracy and the rule of law and to prevent the rise of totalitarianism.

Its main institutions are the Parliamentary Assembly and the Committee of Ministers.

It currently has 47 member states.

It is not part of the EU, although the EU is to become a member.

It undertakes many activities but, most importantly, it hosts the European Convention on Human Rights and the European Court of Human Rights.

Individuals living in member states can bring a case against their state before the Court. If the Court decides that the state has failed to discharge its responsibilities under the Convention it makes a judgment. The Committee of Ministers supervises the enforcement of these judgments.

Chapter 3

On-the-spot question

Read Lord Bingham’s judgment in R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] UKHL 15 – especially para 37 (just google the citation). Contrast his view on taking Strasbourg jurisprudence into account with Lord Scott’s (paras 38-46). Which do you prefer?

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Answer

Lord Bingham’s judgment tends to favour the “mirror” principle by which UK courts should give effect to the Convention rights in the same way as the European Court of Human Rights – no less but also no more. Lord Bingham does (here and in other cases) recognise that there may be some exceptions such as where the Strasbourg law is inconsistent with major principles of English Law.

Lord Scott would appear to be more open to UK courts giving interpretations of Convention rights which are different from Strasbourg.

There is little point in UK courts giving an interpretation which is less generous to an applicant (since the applicant can then go to the ECtHR), so the issue focuses on whether UK courts should, sometimes, be more generous than Strasbourg.

The argument in favour is one which sees human rights as embodying important human values which can enrich our own and others lives, improve the prospects of the least well off and protect the interests of the vulnerable and unpopular. There should be a distinctive “British Bill of Rights” which advances this cause and can be built on a “generous” reading of Convention rights.

The argument against is predominantly one of the separation of powers and the relations of the courts to Parliament and the executive. The point and purpose of the HRA is to enable Convention rights to be upheld in British court; there is no hint in the Act that anything more radical is authorised. Convention rights can involve the courts in political-type judgments (as to whether an interference is necessary in a democratic society, for instance). To avoid stepping too far into the territory of Parliament and the executive, the courts should decline the invitation to go further than Strasbourg.

On-the-spot question

You are the editor of the student newspaper at a University. You want to run a critical story about some aspect of University policy. The Vice Chancellor threatens to discipline you if you do. Consider whether you could bring an action for breach of your right to freedom of expression, in article 10 ECHR/HRA against the University?

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Answer

You can only base the action directly on Article 10 if the University is a “public authority” under section 6 HRA.

The underlying test for a public authority is that it is an institution for which the state is responsible before the Court of Human Rights in Strasbourg. There are Strasbourg cases in which the state is responsible for the behaviour of its universities which interferes with human rights. This indicates that a British university may be a public authority under the HRA.

In Aston Cantlow the UKHL identified two types of public authority for the purposes of section 6 HRA (i.e. the type of organisation for which the UK would also be responsible for in Strasbourg).

“Core” public authorities are those which are part of the government, broadly understood – for example, ministers and local government. They have no private side. There are various factors which are likely to be present, of great importance is that they are bodies with special powers exercising regulatory control on the basis of some form of democratic accountability. A university is unlikely to be a public authority in this sense.

But any organisation can be a public authorities in so far as it exercises public functions (section 6(3) HRA)  - but such bodies are bound by Convention rights only when exercising these public functions and not when pursuing private interests or acting privately. The test for public function contains features similar to the characteristics of a core authority but can also include other features such as the body performing functions that would otherwise be performed by the government. Universities may well be public authorities in this sense because they are established by Royal Charter or statute and they exercise special powers (the awarding of degrees).

Chapter 4

On-the-spot question

In cases involving moral controversy (like abortion) is the ECtHR right to give a wide margin of appreciation to states, or is it really avoiding the issue and denying vulnerable women their rights?

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Answer

There is always a danger that human rights will lose the support of people and governments by insisting on controversial interpretations of rights. The doctrine of the “margin of appreciation” expresses this concern because it gives to states (which are felt to be best in touch with their populations and the values in their cultures) a degree of flexibility. The extent of this flexibility, however, depends on the article being enforced (compare article 3 with articles 8, 9, 10 and 11) and a range of contextual matters.

There is a danger that the vulnerable will lose out. But the following points can be noticed:

• the question should not be begged – where matters are highly controversial the issue before the court is exactly whether or not the right claimed by the vulnerable person exists;
• the margin of appreciation is limited by the power of the Strasbourg court to review the way a state has put its laws into effect and, in particular, by the need to ensure that, even on matters which enjoy a wide margin of appreciation, the “essence” of the right is protected.

So even on issues like abortion the basics (e.g. upholding the right to life of the mother even in the most conservative of cultures) are protected by the Convention.

On-the-spot question

Consider Protocol 12 – do you think it should be brought into UK law or is it better to deal with equality issues by specific legislation?

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Answer

Protocol 12 introduces a general human right not to be discriminated against in respect of the application of “any right set forth in law”.

It can be contrasted with article 14 ECHR which applies to unjustified discrimination only in respect of the way a state gives effect to Convention rights.

The argument in favour of agreeing to Protocol 12 (which the UK has not) is that it is helpful to have a general power kept in reserve in case a person suffers unjustified discrimination  (e.g. on grounds of sex, race or sexual orientation) but in an area not covered by other specific legislation.

The argument against is that discrimination often involves complex issues which relate to particular areas such as employment or the provision of public services. These are best enforced by specialist tribunals (e.g. employment tribunals) which understand the context. It is only through hard edged domestic law (such as the Equality Act 2010, derived from EU law) that discrimination can be effectively dealt with.

Chapter 5

On-the-spot-question

Explore (e.g. by a Google search) and comment on the various procedures by which deaths for which the state is responsible can be investigated in the UK. Examples are:

• the coroner system in the UK,
• the Independent Police Complaints Commission
• investigations under the Inquiries Act 2005.

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Answer

Coroners are empowered to investigate deaths in certain circumstances – the death is unexplained or the result of the use of lethal force, for instance. Coroners must report on how a death happened. In the case of a death for which the state might be responsible (i.e. in the reach of article 2) the coroner may have to go further and comment on the circumstances surrounding the death and which may explain it.

The Independent Police Complaints Commission investigates the most serious complaints against the police and supervises the police’s own investigation of less serious complaints. Where the police have killed a person the IPCC mounts its own investigation whether or not a complaint has been made. The IPCC may communicate its findings to the Director of Public Prosecutions who can then decide whether to prosecute.

The Inquiries Act 2005 allows the government to set up an inquiry into some matter. An inquiry established under the Act may have powers to compel witnesses to attend and to require the disclosure of information (informal inquiries which are not set up under the Act may not have these powers but rely on the cooperation of those being investigated. Killings alleged to have breached article 2 can be investigated in this way (the killing of Baha Mousa in a British Army base in Iraq is an example).

On-the-spot-question

Can torture ever be justified? In the USA there has been an extensive debate on whether if not “torture” at least deliberate inhuman treatment of terrorist suspects can be justified. In favour are those who believe it is likely to produce evidence which, taken together, will allow the authorities to prevent other atrocities and save lives.

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Answer

 Against are those who believe that truth seldom emerges from such treatment; and those who uphold the moral imperative, reflected in article 3, that treating people in this way is so inconsistent with their basic humanity that it can never be justified.

As a matter of law torture cannot be justified. Behaviour that crosses the threshold of severity so as to count as torture is absolute forbidden (e.g. by treaty and also by customary international law). So the arguments in the question are irrelevant from the legal perspective.

Nevertheless arguments such as those given “in favour” above have a strong utilitarian basis to them. A utilitarian says that the only proper way to resolve moral dilemmas (e,g, how to choose when there is a real issue of saving one person’s life or another’s) is, in the end, to choose the outcome which makes more people better off than if the other option is chosen. A “deontological” position, on the contrary, asserts that morality recognises certain fundamentals (such as fundamental rights) which must be preserved whatever the outcome, even if, as a result, others may die or their lives be seriously harmed.

Human rights discourse obviously tends towards the “deontological” position at least so far as it asserts an absolute ban on torture. However, whether that is necessarily “right”, all things considered, is a matter for moral philosophy.  As said above, the legal position is clear.

Chapter 6

On-the-spot question

How is the concept of “law” defined under the ECHR and give at least one leading case in which this is found (check back to Chapter 4)?

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Answer

One of the central requirements found in the Convention is that any action by a state which interfere with  a person’s freedom (especially their freedom from being arbitrarily detained (article 5)) must, at the very least, be properly authorised by “law”. This means four things. The interference must, as a minimum, be allowed under the domestic law of the state. However this is not enough. Secondly the domestic law which applies to the issue must be “accessible” – this means that the individual or his/her legal advisors must be able to identify the legal rule that applies (e.g. a statute, common law or a regulation of some kind which the domestic courts recognise as applying to the situation). Thirdly, the applicable law must be “foreseeable”. This means that, given the context, it must be possible to predict the kinds of circumstances in which an interference with a right is allowable. Legal rules which give too wide and uncontrolled discretion to officials, such as the police, may fail this legal test, Fourthly, the European Court of Human Rights has also made it clear that an interference, even if allowed under domestic law, must not be arbitrary. In particular there always need to be rules and procedures by which people affected by an interference with their liberty can enjoy appropriate safeguards  and access to legal procedures to challenge the lawfulness of what has happened to them.

A good English (HRA) case which demonstrates these points is R (Purdy) v DPP [2009] UKHL 45. The House of Lords held that the principles governing the way the DPP would decide whether or not to prosecute in an “euthanasia” case were too general and not focused on the particular issues of euthanasia. As such there was a breach of the principle that any interference with a person private life has to be “according to law”.

On-the-spot question

Article 5(3) and (4) require a court or similar body assessing the lawfulness of a deprivation of liberty must act on the basis of a fair procedure. What is meant by that?

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Answer

At the heart of the Convention idea of a “fair procedure” is the idea that the body determining whether or not a person has been lawfully deprived of their liberty must be independent (not deciding matter s on the basis of instructions from others such as ministers) and impartial (not likely, in advance of hearing the evidence, to favour one side more than another). The trial must be fair in the sense that it must be “adversarial” – the person whose liberty is at stake must know the case against him or her and be able to answer it; and there must be “equality of arms” – both parties  must be treated equally. The procedure must not give one side an advantage over the other or allow the judge to decide the case on evidence that is not available to the person whose liberty is in issue.

Chapter 7

On-the spot-question

What kinds of hearings or trials are NOT covered by article 6?

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Answer

The right to a fair hearing before an impartial and independent tribunal only applies to hearings (e.g. trials) which are “determining” a “civil right or obligation” or a “criminal charge”. Any hearing which is not covered by the words in quotation marks will not be bound to adhere to the Article 6 standards (though, of course, it might do so for other reasons).

Plenty of hearings are outside Article 6 because they do not involve a “determination”. This means, broadly speaking, that the hearing is preliminary, perhaps the first stage in a process, rather than the hearing which (subject to rights of appeal) makes the final decision. An initial investigation, for example, is unlikely to be covered by Article 6.

Other hearings are outside Article 6 because their subject does not involve “civil right or obligation” of “criminal charge”. The main examples of these are hearings which relate to “public” duties or obligations (like paying tax) or situations in which people may seek some benefit from the state but cannot be said to have a “right” to it (such as immigration status or welfare provisions which flow from policy judgments by officials).

Article 6, therefore, seems to embody a distinction between “public” and “private” law which, because based on Roman law, is traditional in legal systems of many European countries but not so prominent under the common law.

On-the-spot-question

Consider the disciplinary procedures at the place where you study or work – how fair are they?

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Answer

Fairness in disciplinary procedures will be measured in relation to factors such as whether there is a right to an oral hearing, a right to be represented by a friend or even a lawyer, a right to see all the evidence, a right to cross examine, and so on.  

However the extent and scope of such measures will depend a great deal on contextual matters. The courts have often recognised that it is reasonable to allow a trade off between fairness to the person and the efficiency of the business or university. It is for this reason that in some such circumstances the full force of article 6 may well not apply (but will apply to the County Court or employment tribunal where the disciplinary complaint is fully “determined”).

Chapter 8

On-the-spot-question

Politicians have to accept a more limited right to a private life than the rest of us. Is this good (because we should know about the life and character of those we elect), or bad (because fear of exposure in the media deters decent people from getting into politics)?

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Answer

There is a real tension here in human rights law. The European Court of Human rights treats democracy as being the only political system that is consistent with human rights. There is no definition of the term but it must include rights of access to public office. Indeed Article 3 of the First Protocol includes the idea that there should be no unjustified barriers which prevent a person from standing for election or from taking his or her seat if elected. Unreasonable incursions into privacy could become such a barrier.

On the other hand, an effective democracy must also look to the interests of voters and citizens. “Character”, not just policy positions, can be highly relevant to the decisions voters make. Hypocrisy can be a political vice (e.g. where a politicians votes to make something illegal for others that he or she does in private).

This is a difficult judgement to make. The position adopted by the courts is to accept that public figures retain some degree of private life which the law protects but it is more limited than for fully private figures. The (hard to apply) public interest test is used – is the disclosure of what for a non-politician or public person would be private, in the public interest? We accept that our judges are the right people to make these judgements.

On-the-spot-question

Does the legal right to property need to be protected as a “human right”?

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Answer

From one perspective property is clearly a human right. Possession of property is fundamental to who we are. If we had no right to any property it could be removed at will and we would be left to starve. Property may be essential to our existence and sense of identity. Property expresses one of the most important aspects of our autonomy and independence from the state.

On the other hand, once attention moves from personal property it is clear that property can be the expression of social power. It seems quite improper that vastly powerful private and corporate organisations should be able to entrench their power by requiring states to identify and respect their property even against compelling arguments of the public good.

This is, of course, a highly political matter. These arguments are found in the text of article 1 of the First Protocol. In its text it gives a wide scope to the authorities to limit property rights in the public or general interest though this is applied in the light of the requirements of proportionality.

Chapter 9

On-the-spot-question

What are the main justifications for freedom of expression; which do you think are most important (consider Lord Slynn’s account in R v Secretary of State for the Home Department ex p Simms [2000] 2 AC 115, page 126 f-h)

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Answer

The main justifications relate to, first, the necessary conditions for the effective pursuit of truth; secondly, the necessary conditions of an effective democracy (though this would tend to limit the protection to political speech); and thirdly the conditions for human autonomy. An interesting version of this justifies freedom of speech in terms of the giving and receiving of reasons for actions. This separates the giving of reasons (uncontrolled) from the consequential taking of actions (which can be controlled). It also suggests that the advocacy of unlawful action should be protected (legal responsibility would be focused on those who decide to break the law not those who give reasons for so doing).

From this writer’s point of view the political justification is most compelling and expresses the area where free speech is most required.

On-the-spot question

Allocate an area of English law which serves each of the purposes for which freedom of expression and assembly can be restricted  (e.g. “defamation” restricts speech in order to protect reputation).

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Answer

The interests of national security and public safety - the courts will issue an injunction on the grounds of breach of confidentiality in order to protect significant national security interests.

Preventing disorder or crime  -  incitement to violence is a criminal offence.

Protecting health or morals  - The Obscene Publications Act 1959 makes it an offence to publish material which “depraves and corrupts”.

Protecting the rights and freedoms of others – laws of contempt of court restrict speech in order to guarantee a person’s right to a fair trial.

Territorial integrity –  there are no specific statutes  or rules of common law that prevent speech on the ground of protecting territorial integrity.

Protecting reputations and confidentiality – the law of defamation exists to enable people to obtain damages from someone who unjustly damages their reputation by speech.

Maintaining the authority and independence of the judiciary – laws of contempt of court apply not just to protect a fair trial but can apply to those who interfere with the judicial process or who refuse to obey an order of the court. 

On-the-spot question

Is it right to have crimes which are committed by speech or action which offends, shocks or disturbs but is not harmful in other ways (consider also the “enforcement of morals”, discussed above?

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Answer

J.S. Mill famously argued that the law should only restrict actions or words which cause harm to others. Of course what “harm” means is debatable. Some say that it is confined to actions that, as a consequence, make it harder for others to live their lives as they will. This will, therefore, exclude banning words or actions just on the grounds that others (e.g. majority sentiment as expressed by MPs) find them offensive or disgusting. This includes sexual offences which can be committed despite the consent of the parties involved (which still seems to apply to sado-masochism). However most offences which relate to offensive speech apply only when what is said of done causes “harassment, alarm or distress”. These are offences (especially under section 5 the Public Order Act 1986, which can be committed without violence. Nevertheless sometimes they can be applied to actions which cause fear in others.

Chapter 10

On-the-spot-question

How comfortable are you with the idea that a judge should be required to evaluate the coherence and legitimacy of someone’s beliefs? Consider why it was that Lord Walker found the idea “alarming” in R (Williamson) v Secretary of State for Education and Employment [2005] UKHL 15 (para 60); do you agree with him?

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Answer

Generally it is a very bad thing to allow state officials, including judges, to rule on the credibility and reasonableness of beliefs. It offends the basic ideas of individual autonomy and of social pluralism and is therefore inconsistent with the basic purpose of human rights. Furthermore, the liberalism on which human rights is based emerged out of the ferocious religious wars in Europe of the Seventeenth Century and the human rights movement itself out of a rejection of totalitarianism – where the state enforced a code of beliefs.

However Lord Walker’s concerns relate to situations where a person’s right to express his or her beliefs can have a significant impact on others (such as on their children’s education or on their employer’s customers). In this context it seems reasonable that, as the courts insist, only beliefs which reach a reasonable level of coherence should be able to justify actions which interfere with the freedoms of others or prevent public authorities from pursuing policies that benefit others.

On-the-spot question

Do you agree with the decisions on C, L and M in Eweida or do you think, in effect, that they allow laws and employers supported by those laws, to trample over people’s genuine conscientious objections.

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Answer

I agree with the decisions in C, L and M. All these cases involved a qualified right to manifest religious belief. No one was prevented from worshiping as they wish. In all these examples the person claiming rights of conscientious objection had agreed to provide services to the public. By seeking exemption they were making it harder, more expensive, for the organisations providing the service to do so. They were also (at least in the case of L and M) acting inconsistently with the organisations visible commitments to its conception of equality. In the case of C (the nurse) there was also a strong policy justification (health and safety) for the ban on wearing a religious symbol.

Of course it might be argued that the only test for conscientious objection is a practical one – are there enough other people to ensure the service is still provided? If there are, the objector should be allowed to exempt him or herself. This has some attractions but does not actually address the issue. There are many other reasons why, in that situation, a person might exempt him or self – reasons not based on conscience. Furthermore it would prevent an organisation from being able to uphold its own collectively agreed conception of equality.

On-the-spot question

Do you think Grainger draws the line correctly between political opinions (which are not protected by Article 9) and “philosophical convictions” (which are). Note that discrimination in the way Convention rights are applied which is based on political convictions may violate Article 14 (see Chapter 4).

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Answer

There are difficulties with Grainger. “Political” beliefs are not like matters of faith. They are controversial, subject to tests of reason, related to the exercise of power, related to the specific interests of a social grouping and related to a person’s own self-interest. In essence it is much more likely that political beliefs may be the basis of legitimate disagreement with others and be thought to justify or encourage actions which may be inconsistent with the interests of others. Furthermore, political beliefs are likely to be less profound (based more on ascertainable facts than on a “mystery”) and, also, properly open to challenge in a way that religious belief cannot be. As such there is a strong argument to the effect that article 10 is sufficient to protect political opinion. This would still prevent an unjustified dismissal (e.g. a Conservative employee dismissing someone not because of the quality of their work but for the sufficient reason that they support the Labour Party). But it would make it possible to dismiss someone whose political opinions had an impact on their work that the employer, for good reason, thought detrimental (as seemed to be the case in Grainger).