Public law 1 - Common Rights and Human Rights

What are human rights and how are these distinguished from other legal rights?

When the law imposes a duty on one person, someone else will acquire a corresponding right. One way in which these are different is on a practical level as human rights are normally accorded special treatment in the legal system. This is because human rights are afforded a form of protection that goes beyond that which is normally afforded to legal rights. So unlike the protection of normal rights which simply renders unlawful any conduct that is inconsistent with the rights, but at a constitutional level it makes it impossible/hard for legislation to be enacted that is incompatible with the rights. But this idea poses the question of why are some rights given this special special treatment. The political notion of liberalism suggests that people should, as far as is possible to do so, be able to do as they please, which so lies at the root of human rights. But few people would argue that all freedoms should be unlimited as the exercise of these may infringe another’s right. Few legal systems adopt a view of human rights thats oriented exclusively towards the freedom of the individual rights and instead look at the interests of the whole community

Criticisms and arguments against human rights:

• even if we accept that human rights should be used to safeguard individual autonomy, questions remain over the range of rights needed to secure that objective. If we care more about autonomy then emphasis should be placed on negative rights ie being free from interference. But interference by others is not the only reason why a person may not be able to live life as they wish ie the law may give the right to freedom of expression but not everyone will be able to exercise it ie a person with a huge social media following could exercise it more. A response to this problem is that negative autonomy based rights should be supplemented by such positive rights ie people have a positive right to good education which so allows them to exercise freedom of speech

Criticism/ argument against the human rights act

The approach in the previous flashcard suggests that positive rights are ancillary to negative rights ie people should have the right to a good education, but not as its intrinsically important, but because it will better equip them to exercise their right of speech. But an alternative view emphasises other values that are important in themselves, not merely as they are capable of better equipping people to exercise their liberty. Ie the argument that considerations of liberty should not be emphasised at the expense of equality. While equality requires equal access to negative rights, it also requires other things ie positive entitlements. So such entitlements are valuable as they are worthwhile in themselves, not simply as they may enhance peoples capacity to exercise negative rights. If this view is adopted, it leads to a much wider set of human rights then if our focus remains exclusively on consideration of autonomy and so liberty.

Criticism/ argument against human rights

Some people believe that rights should not be the method for upholding important values. Ie some believe that human rights are inapproriately individualistic in nature. So we shouldn’t build our society based on these rights as they emphasise the primacy of the individual, whereas people are bound by community. So instead it should be recognised that individuals are first members of a community and the interests of individuals are of secondary importance (communitarian).But an argument against this is that individual rights should be capable of being overriden by more important community rights.

Criticism/ argument against human rights

There is the question of who should decide how far human rights should go and what they mean in a particular situation? Once human rights are enforced in law, it follows that courts will play a key role in adjudicating on disputes concerning these rights. Supporters of this believe that it is a strength that the courts are independent and free from political interference from the legislature/ executive as it allows disputes to be decided in an object way But some people see it as a weakness as they view human rights cases as more political than legal in nature.

3 points on who should have the last word in relation to human rights issues: political or legal institutions?

1) whether judges should be entrusted with the protection of human rights is a distinct question from that of whether the whole notion of human rights is a good thing ie those who are sceptical allowing the courts to adjudicate on these issues do not reject the notion of human rights altogether

2) there are questions over which rights are recognised as human rights. Ie the right to freedom of expression is a traditional a civil and political liberty as its central to the functioning of a democracy. But these can be contrasted to social rights ie to health care as some argue that these should also be recognised as human rights. If these rights were to be recognised as human rights then judges would have large difficulty concerning the allocation of scarce public money

3) the extent of the courts powers in relation to human rights isa relevant consideration as the more extensive those powers, the greater the scope for objecting to them. We also need to consider the source of these powers ie the HRA invested the courts with a power to allocate on human rights.

What is the difference between liberties and rights?

Having the liberty to do something means that its lawful to do it as the law does not prohibit it. But if someone has the right to do something then the law specifically provides that it can be lawfully done. Liberties are therefore residual, whereas rights are positive and declaratory.

What would be an approach based on the idea of liberty and how is this different from rights?

If people possess a liberty to do something then unless the law changes, it will not be unlawful, so liberty requires passivity on the part of the state. The applies in relation to some rights but rights also require positive action on the part of the state ie this is true of social rights such as right to adequate housing.

What is the benefit of having a society that is based on rights rather than liberties?

If a framework is based on rights, people are likely to be in a better position to ascertain their position. In a rights based framework, a person is trying to answer the question, what am i allowed to do? Whereas in a framework based on liberties, it would be necessary to identify all laws which potentially encroach on the activity to see if there is scope for lawfully engaging in it. So a rights based model would be clearer

What would be a drawback on having a society based on liberties?

Liberties are at constant risk of erosion as they are the freedoms which are left over which all legal prohibitions have been taken into account. So overtime, lawmakers may impose more restrictions on what lawfully be done and so the amount of liberties would reduce. Whereas in a rights based system, no public body is allowed to act contrary to consitutionally protected rights, so erosion is impossible.

Why was the Human Rights Act introduced?

The HRA was introduced as it was felt that the traditional liberties based approach was inadequate. But the intro of the HTA didn’t completely switch the approach to a rights based one as the HRA didn’t fully implement a rights based model and the pre-HRA position didn’t fully conform to a liberties based model.

What was the UKs approach before the HRA?

A pure liberties-based approach to legal freedom would be wholly agnostic about such freedo ie a court seeking to find out if an individual can lawfully undertake an activity would undertake a morally neutral, factual inquiry. SO normative considerations, ie the desirability of free political debtate would be irrelevant ie the court would just interpret and apply relevant law without reference to the fact that an important liberty would be at stake.

But this approach doesn’t accurately reflect the UK prior to the HRA. This is because other legislation confers specific rights on individuals ie before the HRA laws existed that protected rights against discrimination etc

What was the scope of the common law rights?

Theres no definitative list of rights which the courts were prepared to recognise under the common law. But looking at pre HRA case law its inferred that the courts focus was mainly on matters concerning due process and access to the courts. But it should not be assumed that the common law was frozen due to the entry of the HRA, as the HRA can stimulate the development of the common law. ie they can develop in accordance with the common law when appropriate ie R (Osborn) v Parole Board (Lord Reed) [2013] UKSC 61, [2014] AC 1115, [57]

How could the courts protect rights under the common law?

It depends on who had acted. If the actor was a body other than the UK parliament ie a minister, the court could strike down its acts. But if the actor was Parliament and act of parliament conflicted with a common law constitutional right, then the courts cannot strike down this act and so are powerless to intervene. But the courts would usually interpret the legislation so its compatible with the relevant right.

What rights are protected by the HRA?

The range of rights protected is substantially wider than the range of rights that had been recognised by the common law. The rights protected by the HRA are set out by the international treaty of the ECHR.

What are the 4 key provisions of the HRA?

section 3 = courts must interpret legislative provisions compatibly with convention rights as far as its possible to do so

section 4 = if its not possible to interpret a provision in primary legislation compatibly with convention rights, courts may issue a declaration of incompatibility

section 10 = if a domestic court declares or the ECtHR finds that a legislative provision is incompatible with convention rights, relevant legislation can be amended under a fast track process

section 19 = a minister introducing a bill into Parliament must either state that she believes it to be compatible with convention rights or ask parliament to enact the bill even though she doesn’t consider it to be compatible

How does the HRA try to make it harder for the UK to enact legislation which is inconsistent with convention rights?

s19 of the HRA stipulates that before a bills second reading the minister responsible for it must either: make a statement of compatibility stating that they believe its compatible with convention rights or explain to parliament that she is unable to make the bill compatible, but believes it should enacted anyway. This is done to ensure that Parliament does unknowingly enact legislation that will breach convention rights

What does section 6 of the HRA require?

It requires public authorities to act compatibly with convention rights unless primary legislation requires them to act incompatibly, this means that convention rights have become grounds of judicial review = has extended the courts judicial review power

What does section 3 of the HRA require?

It requires the court as far as it is possible to read and give effect to legislation in a way that compatible with the convention rights. Theres a strong obligation for courts to go considerable lengths to interpret legislation compatibly

What is section 4 of the HRA?

Section 4 makes it clear that it makes that provisions in primary legislation that are incompatible with convention rights cannot be struct down (adheres to parliamentary supremacy). But they can issue a declaration of incompatibility.