Ixxvi I

PETER HALSTEAD

UNLOCKING
HUMAN RIGHTS

SERIES EDITORS:
]ACQ11ELINE MARTIN & CHRIS TURNER

I~ ~~O~!!;~~~Up
LONDON AND NEW YORK
First edition published in Great Britain in 2009
By Hodder Education

Published 2013 by Routledge

2 Park Square, Milton Park, Abingdon , Oxon OXI4 4RN
711 Third Avenue , New York, NY , 10017, USA

Routledge is an imprint ofthe Taylor & Francis Group, an informa business

Copyright © 2009, Peter Halstead

All rights reserved . No part of this book may be reprinted or reproduced or

utilised in any form or by any electronic, mechanical, or other means, now
known or hereafter invented, including photocopying and recording, or in
any informat ion storage or retriev al system , without permission in writing
from the publishers.

The advice and informat ion in this book are believed to be true and
accurate at the date of going to press, but neither the authors nor the publisher
can accept any legal responsibility or liability for any errors or omissions .

British Library Cataloguing in Publication Data

A catalogue record for this title is available from the British Library

ISBN 13: 978-0-340 -97291-5 (pbk)

Cover photo © Image Source /Punchstock

Index compiled by Dr. Laurence Errington , 15 Kirkhill Terrace , Edinburgh EHI6 5DQ
Typeset by Phoenix Photosetting, Chatham, Kent.
 CONTENTS D

- . CONTENTS * - - - - - -

Acknowledgements XIV

Preface xv

Human rights study skills XVll

Table of cases XXIV

Table of statutes xxxv

Table of international legislation XXXVlll

List of figures xliii

1 Introduction to human rights 1

1.1 Overview 1
1.1.1 Hard and soft law 2
1.2 Rights and freedoms 3
1.2.1 Rule of law 3
1.2.2 Separation of powers 3
1.2.3 Democracy 4
1.3 Where did 'rights' start? 4
1.3.1 Slavery 4
1.3.2 Civil and human rights in Europe 6
1.3.3 League of Nations 9
1.3.4 Aftermath of the Second World War 10
1.3.5 End of colonialism 10
1.3.6 Diplomats and heads of state 11
1.3.7 Non-combatants, refugees and migrants 12
1.4 ED Charter of Fundamental Rights 12
1.4.1 Legal scope of ED Charter 13
1.5 Jurisprudential nature of human rights 14
1.5.1 Universal v cultural relativism 14
1.5.2 Implications of universalism 15
1.5.3 Basic human goods 16
1.5.4 Generational rights 17

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1.5.5 The Dembour analysis 19

1.6 UK rights today 21
1.7 Acronyms and glossary 22
1.8 Summary 24

2 European Convention on Human Rights 26

2.1 Introduction 26
2.1.1 Early twentieth century 26
2.1.2 The UN 27
2.1.3 The Council of Europe 27
2.2 The European rights regime 28
2.3 European Union 29
2.4 Council of Europe institutions and personnel 30
2.4.1 The Commission 30
2.4.2 The Court 31
2.4.3 The Committee of Ministers 31
2.4.4 The Parliamentary Assembly 32
2.4.5 The Commissioner for Human Rights 33
2.4.6 The Judiciary 33
2.5 The Convention Principles 35
2.5.1 International treaty 35
2.5.2 Prohibition on discrimination 36
2.5.3 Protocols 38
2.5.4 Reservations 39
2.5.5 Derogations 40
2.5.6 Hierarchy of rights? 42
2.5.7 Lawfulness 42
2.6 Inter-state applications 44
2.7 Individual applications 46
2.8 Operating principles of the ECHR 47
2.8.1 Proportionality and purposive interpretation 47
2.8.2 The margin of appreciation 48
2.8.3 Advisory opinions 49
2.9 Conclusions 51

3 Human Rights Act 1998 54

3.1 A proud English tradition 54
3.1.1 Reluctant Europeans 55

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3.1.2 Need for change 56

3.2 Genesis of the Act 57
3.2.1 Bringing rights home 59
3.2.2 Constitutional significance 60
3.3 The Human Rights Act 1998 62
3.3.1 Structure of the Act 62
3.3.2 Summary explanation 63
3.4 Introduction to the Act 64
3.4.1 The Convention rights s 1 64
3.4.2 Interpretation of Convention rights s 2 65
3.4.3 Preamble 66
3.5 Legislation 66
3.5.1 Interpretation of legislation s 3 66
3.5.2 Purposive interpretation 67
3.5.3 Declarations of incompatibility s 4 68
3.5.4 Incompatibility case law 69
3.5.5 Right of Crown to intervene s 5 71
3.6 Public authorities 71
3.6.1 Acts of public authorities s 6 71
3.6.2 Proceedings under s 7 72
3.6.3 Judicial remedies s 8 73
3.7 Remedial action s 10 73
3.8 Other rights and proceedings 74
3.8.1 Freedom of expression s 12 74
3.8.2 Freedom of thought, conscience and religion s 13 74
3.9 Derogations and reservations 74
3.9.1 Derogation 75
3.9.2 Reservati0 ns 77
3.10 Judges of the European Court of Human Rights 78
3.11 Parliamentary procedure 78
3.12 Implementation 79
3.13 Human rights in the UK 79

4 Right to life 83
4.1 Introduction 83
4.1.1 Global conventions 83
4.1.2 The European Convention 84
4.1.3 Abolition of the death penalty 85

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4.1.4 Preliminary considerations 85

4.2 Investigation of mistakes 91
4.3 Wartime deaths 96
4.3.1 Positive state obligation 99
4.4 Deaths in custody 100
4.5 Right to die? 105
4.5.1 Competency 105
4.5.2 Insoluble dilemma 107
4.5.3 The doctrine of double effect 108
4.5.4 Absence of competency 109
4.6 Right to live 111
4.6.1 Competency 111
4.6.2 Absence of competency 111
4.7 Self defence 112
4.8 Right to life in Europe 115
4.8.1 Turkey 115
4.8.2 Germany 116
4.8.3 Italy 117
4.9 Conclusions 117
4.9.1 Common law 117
4.9.2 Rights law 118

5 Prohibition against torture, inhuman and degrading treatment 121

5.1 Background 121
5.1.2 What is torture? 122
5.2 The Milgram experiment 123
5.3 Absolute unacceptability 124
5.4 Meaning and sources 125
5.5 UN Special Rapporteur 126
5.6 Changing perceptions 127
5.7 Chastisement of children 129
5.7.1 Earlier cases 129
5.7.2 Current law 130
5.8 UK legislation 131
5.8.1 School Standards and Framework Act 1998 c 31 131
5.8.2 The Children Act 2004 132
5.9 Children with disability 133
5.10 Punishment of young criminals 134

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5.11 Interrogation of terrorists 135

5.11.1 Th e Parker Report 136
5.12 Deportation 137
5.13 Europe 140
5.14 Torture elsewhere 141
5.14.1 USA 141
5.14.2 China 142
5.14.3 Chile 143
5.15 Conclusions 145

6 Prohibition against slavery 147

6.1 Slavery, servitude, forced or compulsory labour 147
6.1.1 Background 147
6.1.2 Common law 148
6.1.3 Statutory reform 149
6.1.4 A global problem 150
6.2 Definitions 150
6.2.1 ECHR Article 4 152
6.3 Slavery and servitude 152
6.4 Servitude and forced labour 154
6.5 Military Service 156
6.6 Forced labour and Article 4(3) civil exceptions 157
6.6.1 Jury service 157
6.6.2 Legal service 158
6.6.3 Fire service 158
6.6.4 Sport 159
6.7 Council of Europe Convention against Trafficking in Humans 160
6.7.1 Examples of trafficking 161
6.7.2 Op eration Pentameter 162
6.8 Conclusions 162

7 Right to liberty and security 165

7.1 English civil liberties 165
7.2 Human rights 165
7.2.1 Universal rights 166
7.2.2 The European Convention 166
7.2.3 Circumstances permitting deprivation of liberty 167
7.3 Case law 170

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7.3.1 Breach of the peace 170

7.3 .2 Detention without warrant and 'honest belief' 171
7.3.3 Courts martial 171
7.3.4 Crime 172
7.3.5 Natural justice 172
7.4 Balancing liberty and security: detention without charge 173
7.5 Anti-libertarian policies 176
7.6 Non-criminal detention under Article 5 178
7.6.1 Art 5(1)(a) Detention after conviction 179
7.6 .2 Art 5(1)(b) Non-compliance with lawful court order 179
7.6.3 Art 5(1)(c) Prevention of commission of an offence 181
7.6.4 Art 5(1)(d) Detention of minors 182
7.6.5 Art 5(1)(e) Detention on medical or social grounds 183
7.6 .6 Art 5(1)(f) Unauthorised entrants 184
7.7 Detention involving foreign states 185
7.7. 1 Guantanamo 186
7.7.2 Iraq 187
7.8 European Union 188

8 Right to a fair trial 193

8.1 Trials and hearings 193
8.2 Background 193
8.2.1 Magna Carta (1215) 194
8.2.2 English Bill of Rights 1689 195
8.3 Fair process 196
8.3.1 Kevin at the police station 196
8.4 Judicial independence 198
8.4.1 Protection of judicial office 198
8.4.2 Judi cial bias in hearings 198
8.4.3 Jury bias 203
8.5 ECHR Article 6 Right to a fair trial 205
8.5.1 Types of hearing 206
8.5.2 Fair hearings despite flaws 209
8.6 Article 6(1) 210
8.6.1 Access to the Court 210
8.6.2 Fair and public hearing and judgment 214
8.6.3 Within a reasonable time 216
8.6.4 Independent court and absence of bias 217

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8.7 Article 6(2) presumption of innocence 217

8.7.1 The reversed burden of proof 218
8.8 Article 6(3) minimum rights 220
8.8.1 Article 6(3)(a) prompt information 220
8.8.2 Article 6(3)(b) adequate time and facilities 221
8.8.3 Article 6(3)(c) defending oneself and legal assistance 221
8.8.4 Article 6(3)(d) witnesses 222
8.8.5 Article 6(3)(e) interpreters 224
8.8.6 Misuse of Article 6(3) 225

9 No punishment without law 229

9.1 Introduction 229
9.2 Due process (of law) 229
9.3 Legislative power of Parliament 230
9.4 Development of the nullum crimen principle 232
9.5 Modern international provisions 233
9.5.1 UDHR Art 11 233
9.5.2 The ICCPR Article 15 233
9.5.3 ECHR Art 7 234
9.6 The 'Kevin test' 234
9.6 .1 Example of Principle 1 236
9.6.2 Examples of Principle 2 236
9.7 Retrospective crime and punishment 239
9.7.1 Retrospective law 239
9.7.2 Retrospective punishment 240
9.8 Scope of Art 7 cases 243
9.8.1 What kinds of case? 243
9.8.2 Strictly criminal in scope 244
9.8.3 Presumption of innocence 244
9.9 Conclusions 245

10 Privacy and respect for private and family life 247

10.1 Introduction 247
10.2 Privacy under the common law 248
10.3 Rights brought home 251
10.3.1 Convention provisions 252
10.3.2 Development of 'right to privacy' 252
10.3.3 Framing the claim under Art 8 254

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10.3.4 Difficulty of categorisation 257

10.4 Exclusion of evidence 274
10.5 Importance of Art 8 276
10.6 Marriage and founding a family 277

11 Freedom of thought, conscience and religion 280

11.1 Introduction 280
11.2 Freedoms interconnectivity 282
11.3 Analogous provisions 283
11.4 Manifestation of religion 284
11.5 Human Rights Act s 13 288
11.6 Variety of religious beliefs 289
11.7 UK state recognition of religion 290
11.8 Secular beliefs 292
11.9 EU policy 297
11.10 European examples 297
11.11 Scope of Art 9 300

12 Freedom of expression 302

12.1 The foundation freedom 302
12.2 Importance of freedom of expression 302
12.3 Treaty provisions 304
12.4 Analysis of ECHR Article 10(1) 306
12.5 Analysis of Article 10(2) 307
12.6 Limitations on freedom of expression 307
12.6.1 Prescribed by law 307
12.6.2 Necessary in a democratic society 308
12.6 .3 Legitimate aims 309
12.7 Art 10(2) duties and responsibilities 310
12.8 Human Rights Act 1998 316
12.9 Anti-terrorism laws 317
12.10 United Nations periodic review report 318

13 Freedom of assembly and association 321

13.1 Strength in numbers 321
13.2 Employment 322
13.3 Domestic law 322
13.4 International instruments 325

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13.5 Assembly and association 326

13.5.1 UDHR Art 20 326
13.5.2 EU Charter freedoms 327
13.5.3 ECHR Article 11 327
13.6 Analysis of 'association' 327
13.6.1 Case law on association 328
13.7 Meaning of 'assembly' 332
13.7.1 Case law on assembly 333

14 Right to marry 338

14.1 Global recognition 338
14.1.1 UDHR 1948 Article 16 339
14.1.2 ICCPR 1966 Article 23 339
14.2 European recognition 340
14.2.1 ECHR 1950 Article 12 340
14.2.2 EU Charter of Fundamental Rights 2000 Article 9 340
14.3 Overview of ECHR case law 340
14.4 Understanding the meaning of marriage 341
14.5 Relationship between Arts 8 and 12 342
14.6 Right of prisoners to marry and found a family 345
14.6.1 Marriage 345
14.6.2 Founding a family 345
14.7 Consanguinity 347
14.8 Immigrants, illegal entrants, asylum seekers 348
14.9 Divorcellegal separation 350
14.10 Transsexuals 352
14.11 Tax 355
14.12 Protocol 7 Art 5 356

15 Rights and remedies 358

15.1 Establishing the principle 358
15.2 Rights must be enforceable 358
15.2.1 Ubi jus, ibi remedium 358
15.2.2 Magna Carta Arts 39 and 40 360
15.2.3 Equitable maxims 361
15.2.4 Rule of law 362
15.2.5 Equality before the law 363
15.2.6 Petitions of right 364

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15.2.7 UDHR Article 8 366

15.2.8 ECHR Article 13 366
15.2.9 HRA 1998 s 1(1) 366
15.3 Rights and remedies 367
15.3.1 Enforceability of remedies 367
15.3.2 Legal systems enforcing law 367
15.3.3 UN global enforcement 368
15.4 Enforcement of ECHR remedies under HRA 371
15.4.1 Rights protected by the HRA 371
15.4.2 Summary of HRA remedies 371
15.4.3 Limitations on enforcement ability 372
15.5 Case law 373
15.5.1 Asylum seekers 373
15.5.2 Medical negligence and stare decisis 374
15.5.3 Higher education 375
15.5.4 Deprivation of place of abode 376
15.5.5 Failures to provide remedy 377

16 Prohibition of discrimination 381

16.1 Background 381
16.1.1 Domestic legislation 381
16.1.2 Consolidation of domestic provisions 382
16.1.3 International declarations and treaties 383
16.2 ECHR Article 14 384
16.3 Discrimination and equality 384
16.4 Getting a case heard 385
16.5 What is discrimination? 387
16.5.1 Rational justifiability 387
16.5.2 The Michalak Catechism 388
16.6 Other kinds of discrimination 389
16.6.1 Property status 390
16.6.2 Probationary tenancy 391
16.6.3 Bankrupt's possessions 392
16.6.4 Right to marry 393
16.6.5 Sex discrimination 393
16.6.6 Asylum 395
16.6.7 Terrorism 396

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17 Regional rights regimes 400

17.1 The Americas 400
17.1.1 American Declaration of the Rights and Duties of
Man 1948 400
17.1.2 Organisation of American States (OAS) 400
17.1.3 American Convention on Human Rights 1969 401
17.1.4 Forced disappearances 401
17.2 Africa 402
17.2.1 Organisation of African Unity 402
17.2.2 African Union 403
17.3 Minsk Convention 404
17.4 Arab Declaration and Charter 405
17.4.1 Cairo Declaration 405
17.4.2 Arab Charter on Human Rights 405
17.5 Asia 406
17.6 Conclusions 408

Index 410

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-_ACKNOWLEDGEMENTS .1-------'
T he author wo uld like to express h is sincere gratit ude to his students past and present witho ut
whose help and curiosity th is book wou ld not have been wri tten, and to the readers who gen-
erous ly offered practical advice which im proved the book cons idera bly. Any errors of course
rema in the responsibility of th e author.

T his book is dedicated to Jack and Florence H alstead .

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 PREFACE D

-. PREFACE .-----~

T he Unlocking the Law series is an entirely new style of un dergraduate law textbo ok. Many
student texts are very prose dense and have littl e in th e way of interactive materials to help a
studen t feel his or her way th rou gh th e course of study on a given module.

T he purpose of thi s series, th en, is to try to ma ke learning each subject area more accessible by
focusing on actual learn ing needs, and by pro viding a ran ge of different suppo rting materials and
features.

All topi c areas are broken down into ' bite-size' sectio ns, with a logical progression and extensive
use of headings and numerou s sub-headi ngs. Each book in th e series will also conta in a variety
of charts, diagrams and key facts summaries to reinforce th e information in th e body of th e text.
Di agrams and flow cha rts are particularly useful because th ey can provide a quick and easy
understanding of th e key points, especially when revising for examinations. Key Facts charts not
onl y provide a quick visual guide th rou gh th e subject but are useful for revision purpo ses also.

T he books have a number of common features in th e style of text layout. Imp ortant cases are
separated out for easy access and have full citation in th e text as well as in th e table of cases, for
ease of reference. T he em phasis of th e series is on depth of understanding m uch mo re th an
breadth. For thi s reason , each text also includes key extra cts from judgments, where appro priate.
Extracts from academic com ment from jou rn al articles and leadi ng texts are also includ ed to give
some insight into th e academi c debate on complex or controversial areas. In both cases th ese are
ind ented to make th em clear from th e bod y of th e text.

Fina lly, th e books also include much formative 'self-testi ng', with a variety of activities ranging
through subject-specific comprehe nsion, appli cat ion of th e law, and a range of other activities to
help th e student gain a good idea of his or her progress in th e course.

Symbo ls used in th is series:

D This is a small extract from a judgment in a case. It may follow a case example or
the case may be identified immediately above.

This is a section from an Act.

® This is an Article of the EC Treaty or of the European Convention on Human Rights.

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8 This is a clause from a draft Bill or Code.

Where a paragraph is indented, this is an extract from an academic source such

as an article or a leading textbook.

Note also that for all incidental references to 'he', 'him', 'his', we invoke the Interpretation Act
1978 and its provisions that 'he' includes 'she' etc. are invoked.

The twentieth century generally and, more particularly, the World Wars and subsequent conflicts
taught us that unless we develop a global culture of respect, billions of people will continue to
suffer unnecessarily from political oppression, poverty, ill-health, lack of education and insecurity
of existence. Address ing political, economic, social and cultural rights issues after the Second
World War provided a start. However, more recently there has been a realisation that other
factors require us radically to expand what we understand by human rights, especially global
warming which seems to threaten us all, and contradictions arising from scientific and
technological developments. There is widespread debate about what human rights mean, or
should mean, and perhaps the one word that comes nearest to telling us is the need to recognise
and respect human 'dignity'.

This book is designed to cover all the main areas of undergraduate and professional syllabuses
and starts with a wide-ranging introductory chapter followed by a detailed examination of the
European Convention on Human Rights and the Human Rights Act. The substantive
Convention Articles are dealt with by close reference to UK and European case law and the book
concludes with a survey of the global and regional rights regimes.

The law is stated as I believe it to be on 1st January 2009.

Peter Halstead

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 HUMAN RIGHTS STUDY SKILLS D
• HUMAN RIGHTS STUDY
SKILLS . 1 - - - - - - - - - - - -

I Essay writing
No amount of reading, study and knowledge will do the student much good unless he can
produce a high standard of assessed work. This section is designed to help you to plan and write
good essays, dissertations and indeed any extended piece of writing on human rights and the
following section deals with tackling problems or scenarios.

Consider the following essay titles :

Al IIVTTY DDD
Practice essay titles
Essay 1: 'H uman rights can mean different things depending on where you are and
when.' Discuss.
Essay 2: Analyse the scope of Article 2 of the European Convention on Human
Rights (right to life) and evaluate in detail two leading cases.

Many assessments are framed like Essay 1 with a real or imagined 'quotation' and a separate
instruction as to what to do with it. In such cases the quotation comprises the 'content words'
and the instruction 'discuss' provides the 'process word'. The process words are important and
there are many of them (see Figure 1.8 following).

For Essay 2 the process words are contained and conjoined in the title and require two separate
parts to the answer - analysis of Art 2 and evaluation of two unspecified original law reports.
You should not use a secondary account to answer this question but must refer to the primary
law report source. Neither of the titles is particularly easy but you can write an excellent answer
for each essay, given sufficient time, research and care in execution. That means dealing with the
coursework when you receive it, not the night before the hand-in deadline.

Consider the process word(s) first because they will affect the approach to be taken. Some of
them may also reflect the level of work expected, in that by the end of undergraduate studies,
students are often required to 'critically analyse' or 'evaluate' which implies a greater degree of
thought and depth than a simple 'discuss' or 'explain'. The adverb 'critically' may be added to

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Process words What is needed

Advise Identify and explain the legal points involved before com ing to a conclus ion on the likely
outcome either for a particu lar individua l or in answer to a specified question.

Analyse Study in depth , identifying and describing the main characterist ics in detail before reaching a
conclus ion.

Assess Weigh up two or more options or arguments , considering their advantages and disadvantages
before reaching a conclusion.

Comment Express an opinion or reaction to given material in speech or writ ing.

Compa re Look for qualities or character istics that resemble each other : emphasise similarities but do
not ignore differences .

Consider Think carefully about something before making a decision or reaching (a) conc lusion(s).

Contrast Stress the dissimilarities between the items but do not ignore points of similarity.

Critically Incorporate a detailed and scho larly analysis or commentary alongside whatever other process
word is indicated.

Define Give conc ise, clear and authoritative meanings: start with treaty or statuto ry reference(s) if
relevant, then expand by reference to cases.

Discuss Examine and analyse carefully, considering both or all sides of the problem and reach a
balanced conclus ion.

Draft Draw up a document.

Evaluate Examine closely with a view to weighing up both sides of a situation in a balanced way
before reaching a conclusion.

Examine Look in detail at the arguments , theor ies, points at issue and evidence and come to a
conclusion.

Explain Make clear and illustrate the point(s): clarify, interpret and spell out the material you present.

Justify Prove, make out a case for something : give reasons for decisions or conclusions , taking pains
to be convincing.

List Identify and set out clearly in an appropriate and rational order .

Outline Provide a brief explanation of the main points.

Present Introduce or announce the various items of a prepared piece of work , either individually or as
part of a team, sometimes assisted by visual aids (and if so check in advance what
equipment is available).

Refute Rebut or repel and prove the falsity or error of a statement , opinion or argument by your own
argument.

Suggest Put forward ideas, with a rationale.

• Essay instructions

emphasise th e requirement of a scholarly approach to wha tever th e other proc ess word(s) are.
Consider th e following table and always think carefully about exactly wh at is required before
start ing to research th e topic and frame th e answer.

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D
Important qualification
The above table of essay instructions is designed to give you food for thought with regard to the
process words, but the definitions may not invariably be authoritative or exactly what is need ed
in particular contexts, so care must always be given to match the process wordls) with the
content words and any other instructions given for the required work.

Planning the essay

Although quite different things are required from the questions themselves, for both of these
essays you would need to do several things in common:

• Identify the pointis) requiring discussion, ie prepare a draft answer plan .

• Research the required data keeping track of your sources , ie an accurate list of where you find
your information, with the exact references - it is infuriating if you are unable to retrace a
source because you failed to note sufficient details .
• Sort out the presentation order.
• Engage in the discussion , analysis and evaluation respectively, supporting the points you make
with authority.
• When you have written your essay, insert a brief relevant introduction at the beginning and
draw appropriate conclusions at the end.
• Do not forget to use appropriate referencing (Oxford, Harvard or other designated system)
with bibliography, case and statute list, as stipulated.
• Throughout the process, aim to complete the coursework ahead of the actual deadline.

Choosing the material tends to be the easier part, whilst executing the exact requirement of the
essay is often less successfully achieved.

Essay 1 requires you to identify what you think is important. Key words are:

• discuss
• human rights
• different things
• where
• when.
How many 'rights' and 'things' will depend to some extent on how long your essay must be but
obviously involves some elements of comparison and contrast although not explicitly saying so.
Here, a balance of numbers and depth is implied; you would not be advised simply to make a
list, and you will want some depth and substance to your answer. Thus, you might choose to
frame your discussion in terms of comparing and contrasting freedom of speech in the UK and
Myanmar (Burma), or the right to private and family life under the European Convention and
in the Sudan.

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If that seems to require too much research into unfamiliar areas, there are many aspects of the
ECHR which have changed over the last 50 years, and where attitudes vary considerably from
one country to another. Examples might be changing attitudes to corporal punishment or the
death penalty, or comparisons of freedom of religion in (say) Greece and France. The essay leaves
it up to you and if you choose well, there is much you can say. Consider what resources are
available as well as what interests you. The instruction to 'discuss' allows you considerable scope
but remember that discussion can be carried on at any level; a rambling discussion is tedious and
will not gain high marks.

Essay 2 defines your subject matter which pins you down so far as your analysis of the right to
life provisions is concerned, but leaves you free to choose the subject matter of your case law
evaluation in the second part of the question. In the absence of any indication you are entitled
to conclude that roughly equal weight should be given to each part, although common sense is
needed depending on the exact wording of this type of question. If a question falls, or is split,
into more than one part, the examiner will usually indicate clearly if one part is worth more or
less than the otherls) .

Key words and targets here are:

• analyse and evaluate

• scope of the right to life article
• two leading cases.

After your introduction you may wish to quote Art 2 (or the relevant partts) of it) which says:

®
1. Everyone's right to life shall be protected by law. No one shall be deprived of
A his life intentionally save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this Article

when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence

(b) in order to effect lawful arrest or to prevent the escape of a person lawfully
detained
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.

Doing this will bring home to you that the actual key word is 'scope' and simply describing the
article would be insufficient. It is complex, starting with the bald statement:

(I) everyone's right to life 'shall be' protected by law, then going on to
(2) provide justification for judicial killing, and
(3) in Art 2(2) indicating no less than six circumstances where protection is removed:

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STUDY SKILLS
D
• self-defence
• defence of another
• lawful arrest
• prevention of escape from lawful custody
• killing whilst quelling a riot
• killing whilst trying to prevent insurrection.

Most people would assume that if there is one right above all others that cannot be qualified or
compromised, it would be the right to life. Your analysis will demonstrate that the ECHR is
much more complex than that simplistic and erroneous conclusion would suggest. One aspect of
analysis is to show the essence and component parts of something, and here you could do this
by providing case law examples of the three constituents identified above, for example:

(1) successfully argued in McCann and others v United Kingdom (1995) 21 EHRR 97 but not in
LCB v United Kingdom (1998) 27 EHRR 212
(2) that would require explanation of the gradual acceptance via protocols of complete abolition
of the death penalty
(3) examples of cases that might be used here could include Re Jordan's Applications ftr Judi cial
Review [2004] NICA 29 ; Jordan and others v United Kingdom (2000 The Times, 18th May;
McShane v United Kingdom [2002] ECHR 43290/98; and Finucane v United Kingdom [2003]
ECHR 29178/95.

It is important to refer back to the title occasionally to ensure that you choose two appropriate
leading cases and that you do not just recount, describe or summarise them, but evaluate their
content and significance, ie put a value on their importance.

Hence, it is important that you think carefully about what is required, address the questions in a
methodical manner, and answer in an organised and disciplined way. Refer throughout to exactly
what is asked for, ensure that you fully reference the work in respect of case, statutory and treaty
citation, journal articles and other preferably primary sources, and undertake the work in a timely
manner so that it does not have to be printed and submitted in a hurry at the last minute.

Problem solving
Some legal topics lend themselves more easily than others to scenarios or problem-solving, as
students of land law and equity often find, and in such cases they may be required to advise one
or more of the characters depicted. It may be more appropriate to use the essay format for
human rights, but similar criteria apply if there is a scenario to address . What is needed is
fourfold:

• identifying relevant facts on which the answer will depend

• identifying and locating relevant law

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HUMAN RIGHTS

• applying that law to the facts

• drawing appropriate conclusions and, if required, advising the scenario char acters in the
manner required by the assessment.

In most scenarios there is a choice to be made regarding the structure that can often be reduced
to deciding whether to :

• deal with the facts chronologically, or

• deal in turn with each of the characters involved .

Although you must identify which circumstances apply to whom and when, it is important to
avoid repeating the facts verbatim as this is simply padding and will not qualify for any marks.

A{ IIVTTY DDD
Practice scenario question
Ben arrived in the UK in June 2001 from Barbados by using a false passport in the
name of Robert. He was refused entry, detained for a short period, and removed . He
returned in September 2001 using his real name Ben and obtained leave first to enter
as a visitor and later to stay as a student. In 2002 he married a UK national Janet
and was then granted indefinite leave to remain on account of the marriage.
In 2003 he was arrested on drugs and firearms offences but was acquitted. Following
his trial he was detained under immigration powers and notice was served for his
removal under the Immigration and Asylum Act 1999 s lOon the ground that he
had obtained leave to remain based on deception. Throughout he denied that he had
ever attempted to enter the UK as Robert, although eventually it was established by
facial recognition technology that Ben and Robert were one and the same person.
His claim to remain has now been certified as unfounded under the Nationality,
Immigration and Asylum Act 2002 s 94(2).
Advise Ben.

Approach to the scenario task

Here the definition of 'advise' given above is entirely appropriate: 'identify and explain the legal
points involved then come to a conclusion on the likely outcome for a particular individual' .
Identifying the law involved should be fairly straightforward: you have been given the relevant
statutory provisions governing the way his case has been dealt with so far, so you would locate
and study these to provide yourself with the necessary detailed understanding of the law needed
to address the scenario. Ben would probably use Art 8 of the ECHR and would wish to
challenge the decision by means of judicial review.

Ixxvi I
 HUMAN RIGHTS
STUDY SKILLS
D
He might wish to argue other articles , for example that he had not had fair hearings under Art
6, although you would point out that there is no indication that this was the case from the facts
given in the scenario, so it is not a line to be pursued. The basis of his argument would be that
the Secretary of State had failed to establish as a precedent fact to the exercise of the removal
power that he had obtained leave to remain by deception because his true name and identity is
in fact Ben.

It is imperative that you reach a conclusion and provide Ben with the required advice, even
though you may not be sure as to how the court would deal with his case. Arts 6 and 8 are not
absolute and unqualified, so you would apply them to his circumstances, and in light of his
continued deception the court is likely to refuse his application for judicial review and he will
probably be deported.

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- . TABLE OF CASES -f---

A v B (a company) [2002] EWCA Civ 337; [2002] 3 WLR 542 253
A v Essex CC; J v Worcestershire CC; S v Hertfordshire CC; B v Suffolk CC [2008] EWCA
Civ 364 133
A v Nethe rlands (App No 9322/81); (1983) 5 EHR R CD 598 159
A v Secretary of State for the H ome Depart ment; X v Secretary of State for the Home
Department [2004] UKHL 56, [2005] 2 AC 68, HL; reversing [2002] EWCA Civ
1502, [2004] QB 335, [2003] 1 All ER 816, CA 174, 390, 397
A v United Kingdom (1999) 27 EHRR 611... 130, 131
A (and others) v Secretary of State for the Home Depart ment (No 2) [2005]
UKHL 71, [2006] 2 AC 22 1, HL; reversing [2004] EWCA Civ 1123, CA 122, 128, 138, 145, 191
A (Children) (Conjoined Twins: Surgical Separation), Re [200 1] 2 WLR480 112, 115, 120
A (Fe) and others (Fe) (Appellants) v Secretary of State for the Ho me Department
(Respondent) ; X (FC) and anot her (FC) (Appellants) v Secretary of State for the Home
Department (Respondent) [2004] UKHL 56; [2005] 2 AC 68; [2002] EWCA Civ 1502 .76
AL (Serbia) v Secretary of State for the Home Department ; R. (on the application of Rudi) v
Secretary of State for the Home Department [2008] 1 WL R 1434 37
Ahmed v United Kingdom (2000) 29 EH RR 1 328
Airedale NHS Trust Respondents v Bland Appellant [1993] 2 WLR 3 16; [1993] AC 789 109, 120
Airey v Ireland (1979-80) 2 EH RR 305 34 1, 350, 35 1
Aksoy v T urkey (1996) 23 EH RR 553 141
Aldwyck Housing Association v Cun ningham [2000] CLY 52 200
Anderson and Ot hers v T he Scottish Min isters and Another (200 1) The Times, 29 Octo ber;
[2001] All ER (D) 240 (Oct) 192
Angelini v Sweden, App 10491/ 83, Decision of 3 December 1986 (1986) 5 1 DR 4 1, ECmH R 290
Arrowsmith v United Kingdom, App 7050/75, decision of 12 Octo ber 1978 (1978) 19 D R 5,
ECmHR; (1980) 19 DR 5; (198 1) 3 EH RR 218 292,3 10
Anto un v Q ueen (2006) (unreported) 203
Aston Candow and Wilmcote with Billesley Parochial Church Co uncil v Wallbank [2004] 1 AC 546 ..378
Attorney-General v Guardian Newspapers Ltd [1987] 1 WLR 1284 56
Attorney-General v Jonathan Cape Ltd; Atto rney General v Ti mes Newspapers Ltd [1976] QB 752;
[1 975] 3 W LR 606 3 15
Attorney-General's Reference No 1 of 2004 [2004] EWCA Crim 1025; [2004] 3 WLR 976 50
Austin v Commissioner of Police of the Metropolis [2009] UKHL 5, HL; affirming [20 07 ]
EWCA Civ 989 CA; affirming [2005] EWHC 480 (QB) 182, 192
Autio v Finland (1991) 72 D R 245, ECt HR 292
Aydin (Sukran) v Turkey (1997) 25 EHR R 25 1,3 BH RC 300 141
Aydin v Turkey App 25660/94, Decision of 25 May 2005 (2006) 42 EH RR 44 140

Band L v United Kingdom [2006] 42 EHR R 11 34 1,348,354

Band P v United Kingdom (Apps 36337/97 and 35974/97), Judgment of 24 April 200 1;
(2002) 34 EHRR 19 215

Ixxvi I
 TABLE OF CASES D
Barbera, Messegue and Jabardo v Spain (1988) 11 EHR R 360 2 18
Barrow v United Kingdom (App no 42735/02) 386
Beet v United Kingdom (47676/99) (2005) 4 1 EH RR 23 180
Belilos v Switzerland (1988) 10 EH RR 466 .40
Bellinger v Bellinger [2003] UKHL 21; [2003] 2 AC 467 34 1,354,355
Benham v United Kingdom (App 19380/92), Jud gment of 10 Jun e 1996; (1996) 22
EH RR 293 180
Bernstein v Skyviews Ltd [1978] QB 479 249,251,256
Birmingham City Council v Bradn ey, Birmingham City Council v McCann [2003] EWCA
Civ 1783; [2003] All ER (D) 163 (Dec), CA 267
Birmin gham City Council v H (a Mino r) [1993] 1 FLR 883 112
Bliss v Hall 132 ER 758; (1838) 4 Bing NC 183 Common Pleas 264
Brannigan and McBride v United Kingdom , Jud gment of 26 May 1993, Series A, No 258-B;
(1993) 17 EHRR 539 .4 1, 75, 77
Brogan and others v United Kingdom , Jud gment of 29 November 1988, Series A, No 258-B;
(1988) 11 EHRR 117 .41, 63, 75, 171
Briiggemann & Scheuten v Germany (1977) 3 EH RR 244 255, 256
Buckley v United Kingdom (1996) 23 EH RR 101 255, 256
Bull v Bull [1955] 1 QB 234 CA 362
Burden v United Kingdom (2007) 44 EH RR 51 34 1,356
Burmah O il Company v Lord Advocate [1965] AC 75 231,232
Burton v UK (1996) 22 EH H R 135 270
Bushell's Case (1670) Vaughan's Reports, 135; (1670) 124 ER 1006 303,3 09,3 19

CG v United Kingdom (43373/98) Jud gment of 19 December 2001 ; (2002) 34 EH RR 3 1 .214

Caballero v United Kingdom (App 32819/96), Jud gment of 8 February 2000 ; (2000) 30
EH RR 643 172, 191
Campb ell v Hall (1774) 1 Cowp 204; 98 ER 1045, KB 377
Campbell v M GN Ltd [2004] UKH L 22; [2004] 2 AC 457 253
Campbell and Cosans v United Kingdom (Application 7511176) (1982) 4 EH RR 293 39, 130
Chahal v United Kingdom (1996) 23 EH RR 4 13; 1 BHRC 405 65
Chapman v UK (2001) 33 EH RR 399 255 , 256, 272
Chappell v United Kingdom (1989) 12 EH RR 1; App12587/ 86, Decision of 14 July 1987
(1987) 53 DR 241 290
Chassagnou and others v France (2000) 29 EH RR 615 .328
Church of Scientology Moscow v Russia (Application No 181 47/02), Decision 5 April 200 7;
(2008) 46 EH RR 16 290
Connolly v DPP [2007] 2 All ER 1012 (DC) ; [2007] EWH C Amin 293
Connors v United Kingdom (2005) 40 EH RR 9 271
Corcoran and others v United Kingdom (App No 60525/00) 386
Cossey v United Kingdom (1991) 13 EH RR 622 269, 341, 353
Costello-Roberts v United Kingdom (Application 13134/87) [1993] 19 EH RR 112; [1994]
1 FCR 65 130
Council of Civil Service Unions v Mini ster for the Civil Service [1985] AC 374 330, 377
Co uncil of Civil Service Unions and Others v Unit ed Kingdom App No 11 603/85 (1 988)
10 EH RR C D269 330, 33 1
Countryside Alliance v Attorney-General [2007] UKH L 52; [2007] 3 WLR 922 71, 254, 257, 278
Craxi v Italy (2004) 38 EH RR 47 263

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Croke (A Minor) v Wiseman [1982J 1 WLR 71 CA (Civ Div) 374

Cuscani v United Kingdom (3277 1/96) (2003) 36 EH RR 2 225
Cyprus v T urkey (App 25781/ 94 EC H R), Judgment of 10 May 2001 [2001J 11 BHRC 45,
(2002) 35 EHRR 73 1 .44, 45, 152

D v France App 10180/82, Decision of 6 December 1983 (1983) 35 DR 199 290

Dabas v High Court of Justice, M adrid (Dabas v Spain) [2007J 2 AC 31 HL.. 189
Derbyshire County Council v Times Newspapers Ltd [1993J AC 534; [1992J QB 770 56, 254
Dickson v United Kingdom (44362/04) (2008) 46 EH RR 4 1 34 1, 345, 346
Dim es v Grand Jun ction Canal 10 ER 301; (1852) 3 HL Cas 759 199, 201 , 202
Douglas v Hello! Ltd [2001J 2 WLR 992 CA 253
Dr aper v UK (1981) 24 DR 72 56
Dyson v W atson ; HM Advocate v JK, [2002J UKPC Dl, [2004J 1 AC 379 216

E (Alleged Patient), Re, see Sheffield Cit y Council v E-

ELH v United Kingdom (32094/96) (1998) 25 EH RR CD 158 Eur Com HR 347
Eastham v Newcastle United Footb all Club [1963J 1 Ch 4 13 159
Eccleston v United Kingdom (App no 4284 1/02) 386
Edwards v United Kingdom (App 46477/99), Jud gment of 14 March 2002 ; (2002)
35 EH RR 19; (2002) 35 EH RR 487 101-103, 120
Eisenstecken v Austria (2002) 34 EHRR 35 .40
Evans v Amicus Healthcare Ltd [2003J 4 All ER 903 Fam D 248
Evans v United Kingdom (Application 6339/05) (2008) 46 EH RR 34; [2007J 1 FLR 1990
(Gra nd Ch amber) 34 1,343,347
Ezelin v France, Judgment of 26 April 1991, Series A, No 202 ; (1992) 14 EH RR 362 333

F (Mon golia) v Secretary of State for the Home Dep artment [2007J All ER (D) 384 (ju l),
[2007J EWCA Civ 769 390, 395
FK (Kenya) v Secretary of State for the Home Dep artment [2008J EW CA Civ 119 34 1, 349, 355
Findlater v United Kingdom (App no 38881/97) 386
Findlay v United Kingdom (App 22107/93) (1997) 24 EHRR 221... 171
Finucane v United Kingdom (App 29178/95), Judgment of 1 Jul y 2003; (2003) 37 EHTT 656 92,95
Fitzpatrick v Sterling Housing Association [2001J 1 AC 27 394
Fox, Campbell and Ha rtley v United Kingdom, Judgment of 30 August 1990, Series A, No 182;
(1991) 13 EHRR 157 171
Friend v Lord Advocate [2007J UKH L 53 328

G & E v No rway (1983) 35 DR 30 255, 256

Galstyan v Armenia [2007J ECHR 26986/03 328
Gammell v W ilson [1982J AC 27 HL 375
Ghaidan v Godin-Mendoza [2002J EWCA Civ 1533 390, 394, 395
Giacom elli v Italy (2006) 45 EH RR 871 255
Glass v Un ited Kingdom (61827/00) [2004J 39 EHRR 15 260
Golder v United Kingdom , Judgment of 21 February 1975, Series A, No 18; (1979-80)
1 EH RR 524 212
Goodwin v United Kingdom (2002) 35 EHRR 447 34 1, 354, 355
Gouriet v Union of Post Office Workers (1978) AC 43 5 359
Grande Oriente D'Italia Di Palazzo Giustiniani v Italy [2001J EC H R 500; (2002) 34 EHRR 22 328

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 TABLE OF CASES D
Greek Case, T he (1969) 12 Yearbook 1, European Commission of Human Rights 125
Guisto v Governor of Brixron Prison [2003] 2 WLR 1089 HL 191
Guzzardi v Italy Series A, No 39 (198 1) 3 EH RR 333 169, 170, 183

H v United Kingdom (1993) 16 EHRR CD 44, ECmHR 294

H v United Kingdom aka L v UK (45508/99), Judgment of 5 October 2004 (2004) 40 EH RR 761 184
H v United Kingdom, Judgment of 8 Ju ly 1987, Series A, No 120; (1988) 10 EH RR 95 216
Halsey v Esso Petroleum Co Ltd [196 1] 1 WLR 683 QBD 264
Hamer v UK Application No 71 14/75 (1982) 4 EHRR 139; (1979) 24 DR 5 56, 34 1, 345
Handyside v United Kingdom, 7 December 1976, App No 5493/72; (1979-80) 1 EH RR 737 ....308, 309
Harro w London Borough Council v Qazi [2003] UKHL 43; [2004] 1 AC 983 256 , 266, 267, 276
Hashman and Harrup v United Kingdom (2000) 30 EHRR 24 1 262 , 335
Hatton v United Kingdom (2003) 37 EHHR 28 265
Hepp le and others v United Kingdom (App no 65731/01) 386
Heydon's Case (1584) Co Rep 7a 67
H ill and 12 other s v United Kingdom (App no 28006/02); (consolidated with many other cases) 386
Hood v United Kingdom (App 27267/95 ), Judgment of 18 February 1999; (2000) 29 EHRR 365 171
Howell v Lees Millais [2007] EWCA Civ 720 200 , 203
Hunt v London Borough of Hackney etc. [2002] 3 WLR 247; [2002] 4 All ER 156 36 1

ISKONA and others v United Kingdom, App 20490102, Decision of 8 March 1994 (1994)
76-A DR 41; ECmH R 290
Internation al Transport Roth Gm bH v Secretary of State for the Home Department [2002]
EWCA Civ 158; [2002] 3 WLR 344 73, 208
Iqbal v Whipps Cross University Hospita l NHS Trust [2007] EWCA Civ 1190 374, 379
Ireland v United Kingdom (Application 5310/7 1), Judgment of 18 Janu ary 1978, Series A,
No 25; (1978) 2 EHRR 25 44 , 77, 126
Iversen v Norway (App 1468/62), Decision of 17 December 1963 (1963) 6 Yearbook 278;
EComHR 155, 157

JE v DE (aka Re DE) [2006] EWHC 3459 183

Joh ansen v Norw ay (1987) 9 EHRR CD 103 156, 157
Johnston v Ireland (1987) 9 EHRR 203 34 1, 350 , 351
Jones v Ministry of the Interior of the Kingdom of Saudi Arabia (Secretary of State for
Constitutional Affairs intervening) ; Mitchell v Al-Dali [2006] UKHL 26, [2007]
1 AC 270; reversing in part [2004] EWCA Civ 1394 144
Jordan and others v United Kingdom; McKerr v UK; Kelly and Others v UK; Shanaghan v UK
(Application No 24746/94) (Application No 28883/95) (Application No 30054/96)
(Application No 377 15197), Judgment of 4 May 2001 , (2003) 37 EHRR 52; (2001)
The Times, 18 May 92-95 , 102, 103
Jordan's Application for Judicial Review, Re [2004] NI 198; [2004] NICA 29 93, 94

K (A Child) (Secure Accommodation Order: Right to Liberty), Re [2001] 2 WLR 1141 ;

[2000] All ER (D) 1834 (CA) 178, 183
K v Federal Republic of Germany (196 1) 4 Yearbook 240; 6 Coli. 17 34 1, 345
K v United Kingdom (38000105) (2008) The Times, 13 October 375
Khan v United Kingdom Application No 35394/97; (2002) EHRR 45 275
Kalac v Turkey (App 20704/92) Judgment of 1 July 1997; (1999) 27 EHRR 552 287

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Karaduman v Turkey (App 16278/90) D ecision of 3 May 1993 (1993) 74 DR 199 290
Karlheinz Schmidt v Germany (1994) 18 EH RR 513 159
Kay v Lambeth Lond on Borou gh Council [2006] UKHL 10; [2006] 2 AC 465; [2004] EWCA
Civgf 926 256
Kaye v Robert son [1991] FSR 62 250 ,251 ,256
Kelly v United Kingdom (2001), see Jordan and oth ers v United Kingdom ; McKerr v UK;
Kelly and Others v U K; Shanaghan v UK-
Kelly v United Kingdom (Application 17579/90) (1993) 16 EH RR CD 20 89-91 , 119
Kimber and others v United Kingdom (App 65900/01 ) 386
Klass and othe rs v Federal Republ ic of Germany (1979-80) 2 EHRR 214 261
Knuds en v Norwa y (1986) 8 EH RR 45, Cm; (1985) 42 DR 247, EC m H R 292
Kokkin akis v Greece (1993) 17 EH RR 397, ECtH R 287, 300
Koniarska v United Kingdom (App 33670/96), admissibilit y decision of 12 October 2000 183
Kyprianou v Cypru s (App No 73979/ 01, 15 December 2005 (2007) 44 EHRR 27 220

L v Lithuania (2008) 46 EH RR 22 34 1, 354

LCB v United Kingdom (App 23413/94), Jud gment of 9 June 1998; (1998) 27 EH RR 212 86,88, 115
Lancashire County Council v T aylor (Secretary of State for the Environment, Food and Rural
Affairs intervenin g) [2005] EWCA Civ 284; [2005] 1 WLR 2668 390
Larissis and others v Greece (1999) 27 EH RR 329 287
Le Compte and others v Belgium (198 1) 4 EH RR 1.. 328
Le Cour Grandmaison and Fritz v France (1989) 11 EH RR 46 292
Leakey v Nation al T rust [1980] QB 485 CA 264
Leyla Sahin v Turkey (App 44774 /98), initial Judgment of 29 June 2004 confirmed by Grand
Ch amber Judgment of I O N ovember 2005 298
Lirwa v Poland (App no 2662 9/95) (2000) 63 BMLR 199; [2000] ECHR 2662 9/95 178
Liversidge v Anderson [194 1] 3 All ER 338 HL. 191
Lloyd v United Kingdom (29798/96) [2006] RA 329 180
Locobail (U K) Ltd v Bayfield Prop erties Ltd [2000] QB 451 200, 201
Loizidou v Turkey (1996) 20 EC H RR 1995 .40
Lord Advocate, The, Petitioner, 2007 SLT 849 207

M v Secretary of State for Work and Pensions [2006] UKH L 11; [2006] 2 AC 91 390, 394
M and H (M inors), Re [1990] 1 AC 686 56
McBride v United Kingdom App No 1396/06 (2006) 43 EHRR SE 10 113-115 , 119
McCann v United Kingdom (Application 19009/04) [2008] All ER (D) 146 (May), ECtHR 266 , 267
McCann and others v United Kingdom, (Application 18984/91) , Judgment of
27 Sept ember 1995, Series A, No 324; (1995) 2 1 EH RR 97; [1995] ECHR
18984/9 1 87,88,91 , 104, 119,276
McFeeley and others v United Kingdom (App 83 17/ 78) (1981) 3 EHRR 161 293
McGinley and Egan v United Kingdom (1999) 27 EH RR 1 87
McKerr v United Kingdom, see Jordan and others v United Kingdom; McKerr v UK; Kelly and
Others v UK ; Shanaghan v UK-
McR's App lication for judici al review, Re [2002] NIQB 58; [2003] NI 1 .73
McSh ane v United Kingdom (App 43290/98), Jud gment of 28 M ay 2002 ; (2002)
35 EH RR 523 92, 94, 119
Malcolm, Re [2004] EW CA Civ 1748; [2005] 1 WLR 1238 390, 392, 395
Malone v U K (Application 8691/79) (1984) 7 EH RR 14; (1985) 7 EH RR 14 56,262,276

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 TABLE OF CASES D
Manoussakis and others v Greece (1996) 23 EHRR 387, ECt HR 290, 297
Mansur v Turkey (N 32 l) (1995) 20 EHRR 535 ECHR 217
Marckx v Belgium (1979) 2 EHRR 330 34 1, 343
Markovic v Italy (App No1398/03) (2007) 44 EHRR 52 209
Mastromatteo v Italy (App No 37703/97) 117
Matthews v United Kingdom (App no 40302/98) 386
Max Mosley v News Group Newspapers Limited [2008J EWHC 1777 (QB); 2008
WL 2872466 274 , 308, 309
Menesheva v Russia App 59261/00, Decision of 9 March 2006 (2007) 44 EHRR 56 141
Metropolitan Church of Bessarabia v Mo ldova (2002) 35 EHRR 13 298
Ministry of Justice v Prison Officers Association [2008J EWHC 239 (QB) 332
Moreno Gomez v Spain (2005) 4 1 EHRR 40 266

N v United Kingdom (26565/05) The Times, 6 June 200 7 139

Nadarajah v Secretary of State for the Home Department and conjoined cases [2003J EWCA
Civ 1768, CA 185
'Negotiate Now' v United Kingdom (1995) 19 EHRR 93 328
Neill and others v United Kingdom (App no 56721/00) 386
Nerva v UK (App No 42295/98) 385, 386
Niemietz v Germany (1992) 16 EHRR 97 255 , 256
Notham v London Borough of Barnet [1978] 1All ER 1243 .47

Ogur v Turkey (App No 21594/93) (2001) 3 1 EHRR 40 116

Osm an v United Kingdom (App 23452/94), Judgm ent of 28 October 1998; (1998) 29 EHRR 24599 ,
103
Othman Gordan) v Secretary of State for the Home Department [2008] EWCA Civ 290 139

P (A Ch ild) (Adoption: Unm arried Coup les), Re [2008] UKHL 38 352

PG & JH v UK Reports of Judgments and Decisions 200 1-IX, p 195; (App 44787/98),
Judgment of 25 September 200 1 255 , 256
Pearson v Un ited Kingdom (App 8374/03), Decision of 27 April 2004 154
Peck v UK (Application 44647/98) [2003] IP & T 320; [2003] All ER (D) 255 (jan):
(2003) 36 EHRR 4 1 255 , 256 , 273, 276
Pendragon v UK (1999) 27 EHRR Co 179; [1999] EHRLR 223 (Comm ission) 289
Pepper (Inspector of Taxes) v Hart [1993] AC 593 47
Perks and others v UK (1999) 30 EHRR 33, ECtHR 172, 178, 179
Perry v United Kingdom (2004) 39 EHRR 3 248, 263
Pickett v British Rail Engineering Ltd [1980] AC 136 HL 374, 375
Pickstone v Freemans pic [1988J 2 All ER 803 67
Pinochet Ugarte (Habeas Corpus) (2000) 97(1) LSG 24 144
Platform Arzte fur das Leben v Austria (199 1) 13 EHRR 204 328
Poplar Ho using and Regeneration Community Association Ltd v Donoghue [200 1] EWCA
Civ 595 ; 3 WLR 183 71
Powell and Raynor v United Kingdom (1990) 12 EHRR 355 265
Pretry v United Kingdom (App 2346/02), Judgment of 29 April 2002;
(2002) 35 EHRR 1 105, 108, 115, 134, 255, 256, 296, 377, 379

R v Abdro ikov, R v Green and R v W illiamson [2007] UKHL 37; [2007] 1 WLR 2679 204

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R v Arthur Alan Murray [2004J EWCA C rim 2211 ; 200 4 WL 1808 966 3 12
R v Bhajan Singh [1976J QB 198 34 1, 34 8
R v Big M Drug M art Ltd [1985J 1 SCR 295 ; [1986 J LRC (Const) 322, Ca n SC 300
R v Bow Street Metropolitan Stipendiary Magistrate ex parte. Pinochet Ugarte (No 1)
[2001J 1 AC 61 14 3
R v Bow Street Metropolitan Stipendiary Magistrate ex parte. Pinochet Ugarte (N o 2)
[2001J 1 AC 119, H L.. 144, 199 ,201-203,205
R v Bow Street Stipendiary Ma gistrate ex parte Pinochet Ugarte (No 3) [1999J
2 WLR 827; [2000J 1 AC 147 11, 144
R v Cole and R v Keet [200 7J EWCA Crim 1924; [2007J 1 WLR 2716 210
R v Conroy and R v Glo ver [1997J 2 Cr App R 285 204
R v Davis (lain) and others [2008J 3 WLR 125; [2006J 1 WLR 125 22 3, 224
R v Deyemi (D anny) [200 7J EW CA C rim 2060 .244
R v DPP, ex parte Kebilene and others [2000] 2 AC 326; [1999 ] 3 WLR 175 21 9
R v Dundon [2004] EWCA C rim 621 20 9
R v Goldstein ; R v Rimmington [2006J 2 All ER 25 7 H L.. 241-243, 245
R v Gough (Robert) [1993] AC 646 HL 201 , 20 3, 204 , 22 7
R v H (Assault of Child: Reason able Chastisement) [2001] EWCA Cr im 1024 131
R v Home Secretary ex p Brind [199 1J 1 AC 696 56
R v Kearley (1992) 2 AC 228 194
R v Khan (Sultan) [1997] AC 558 HL 275
R v Knowle s, ex parte Somersett, or Som erset v Steu art (1772) 20 State Tr 1;
(1772 ) Lofft 1; (1772) 98 ER 49 9 4, 6, 148 , 14 9, 157, 163
R v Lamb ert (Steven) (and others) [200 1] 2 WLR 211 218
R v Lewis [2005] EWCA Crim 859 209
R v McGuigan (W illiam Joseph) [2005J EWCA C rim 2861 ; CA (C rim Div) 237
R v M alik [1968] 1 WLR 353 3 12
R v MHRT North and East London Region , ex parte H (2001) 3 WLR 512 69
R v Mi sra and another [200 4J All ER (D ) 107 .24 3
R v Sang (Leon ard Anthony) [1980J AC 4 02 HL.. 275
R v Secretary of State for th e Home Department ex parte Khawaja [1984J AC 74 HL 186
R v Secretary of State for the Home Department ex parte Pinochet Ugarte [1999] C LY 2291 Q BD 144
R v Secret ary of State for th e Home Department ex parte Simms (and O 'Brien )
[2000] 2 AC 115 303, 304, 309, 3 16
R v Secretary of State for Transport, ex p Richmond-upon-Thames London Borou gh
C ouncil [199 4] 1 All ER 577, [1994 J 1 WLR 74, QBD 265
R v Secret ary of State for Transport, ex p Richmond upon Tham es London Borough Council
(N o 4) [1996J 1 WLR 1460, CA; affirm ing [1996 J 4 All ER 93 , QBD 265
R v Spenc er [198 7J AC 128, HL 20 3, 22 7
R v Taylor (Paul Sim on ) [2001J EWCA C rim 2263; [2002J 1 Cr App Rep 519 289 , 290
R v Ulcay (Erdogan) and another [2007J EW CA C rim 2379 22 5, 226
R v Umra n Javed and Others [200 7J EWCA Crim 2692 32 8, 334
R (on th e application of Abb asi) v Secretary of Stat e for Foreign and Com mo nwealth Affairs
[2002J EWCA Civ 1598; [2003J 3 LRC 297 186 , 189
R (on the application of Al-Jedda) v Secretary of State for Defence [2006J 3 WLR 95 4 CA 187, 189
R (on th e application of Al-Skeini and others) v Secretary of State for Defence (T he Red ress
T rust and others int ervening) [2007J UKHL 26 ; [2008J 1 AC 153 99, 100

Ixxvi I
 TABLE OF CASES D
R (on the application of Amin Imtiaz) v Secretary of State for the Home Department [2004]
1 AC 653; [2003] UKHL 51, HL , reversing [2002] EWCA Civ 390, CA 10 1, 120
R (on the application of Amirrhanathan) v Secretary of State for the Home Department [2003]
EWCA Civ 1768, CA; affirm ing [2003] EW H C 1107 (Admin) 185
R (on the application of Anufrijeva) v Sourhwark LBC [2003] EWCA Civ 1406 (consolidated
case) 373, 379
R (on the application of Baiai) v Secretary of State for the Home Department; R (on the
application of Bigoku) v same; R (on the application of Tilki) v same [2008] UKHL
53, HL; on appeal from [2007] EWCA Civ 478, CA; affi rming [2006] EW HC 823,
Admin Ct 34 1, 349, 390, 393, 395
R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth
Affairs [2008] UKH L 6 1 377
R (on the application of Begum) v Denbigh High School Governors [2006] UKHL 15;
[2005] EWCA Civ 199 285 , 289 , 298
R (on the application of Bennett) v HM Coroner for Inner South London [2006] EW HC
196 (Admin) 113, 119
R (on the application of Black) v Secretary of State for the Home Department [2008] EWCA
Civ 359 70
R (on the application of Burke) v Genera l Medical Counci l [2005] EWCA Civ 1003; [2004]
EWHC 1879 111, 120
R (on the application of Carson) v Secretary of State for Work and Pensions and Con joined
cases [2005] UKHL 37 387, 390, 398
R (on the application of Countryside Alliance and others (Appellants) and others) v Her
Majesty's Attorney General and another (Respondents) (Conjoined Appeals), see
Countryside Alliance v Attorney-General-
R (on the application of Countryside Alliance and others) v Attorney General and another; R
(on the application of Derwin and others) v Same, see Countryside Alliance v Attorney-General-
R (on the application of Daskaloulis) v University of West England, Q ueen's Bench Division
(Administrative Court) , 22 October 2008 375, 379
R (on the application of E) v Secretary of State for the Home Department [2007] EWHC 1731
(Admin); [2007] ACD 83 22 1
R (on the application of Gentle) v Prime Minister [2008] UKHL 20 96, 97, 99, 104, 115, 119
R (on the application of H) v London North and East Region Mental Health
Review T ribunal (Secretary of State for Health intervening) [2001] EWCA
Civ 4 15; [2002] QB 1, CA; reversing [2000] All ER (D) 1837, Admin Ct 73
R (on the application of H) v Secretary of State for Health [2005] UKHL 60; reversing [2005]
3 All ER 468 69
R (on the application of Heather) v Leonard Chesh ire Foundation [2002] EWCA Civ 366 ; [2002]
2 All ER 936 71
R (on the application of Laporte) v Chief Co nstable of Gloucestershire [2006] UKHL 55 181
R (on the application of McLellan v Bracknell Forest Be) [2001] EWCA Civ 1510 390 , 39 1, 395
R (on the application of Mellor) v Secretary of State for the Home Department [2001]
3 WLR 533 34 1, 345
R (on the application of Morris) v Westm inster City Council and another; Regina (Badu) v
Lambeth London Borough Council [2005] EWCA Civ 1184; [2006] 1 WLR 505 CA 70
R (on the application of Playfoot (A Chi ld)) v M illais School Governing Body [2007]
EWHC 1698 (Admin) 285 , 286, 289, 298

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D U N LO C KIN G
HUMAN RIGHTS

R (on the application of Pretty) v Dir ector of Public Prosecutions (Secretary of State for the
Home Department int ervenin g) [2001] UKH L 61; [2002] 1 AC 800, HL ; affirming [2001]
EW HC Adm in 788, DC 105, 108, 115, 120, 134,
255 , 295 , 377
R (on the application of Q) v Hom e Secretary [2003] 3 WLR 365 134
R (on the application of Saddi and oth ers) v Secretary of State for the Home Department
[2002] 1 WLR 3131 184, 185
R (on the application of Stewart) v HM Advocate; Gough (Stephen Peter) v HM Advocate,
see Robertson , Petition er; Gough v McFadyen-
R (on the application of Swami Suryanand a) v Welsh Ministers [2007] EWCA Civ 893 ........48, 289 , 294
R (on the application of Ullah) v Special Adjudicator; Do v Secretary of State for the Home
Dep artm ent [2004] 3 All ER 785; [2004] UKH L 26 137, 243
R (on the application of Uttley) v Secretary of State for the Home Dep artment [2004]
4 All ER 1; [2004] U KH L 38; [2004] 1 WLR 2278; [2003] EWCA Civ 1130 237, 240
R (on the application of W atkin s-Singh) v Aberdare Girls' Hi gh School Governo rs [2008]
EW HC 1865 (Admin) 286 , 298
R (on the application of Williamson and others) v Secretary of State for Education and
Employment and others [2005] UKH L 15 132
R (on the application of X) v Headteachers and Governors of Y School [2007] EW HC 298
(Admin) 286
RSPCA v Attorney-Gene ral [2002] 1 WLR 448 328
Rassemblement Jur assien U niro Jurassienne v Switzerland (1979) 17 DLR 93 333
Reay and Hop e v British N uclear Fuels Pic [1994] Env LR 320 87
Rees v U K (1987) 9 EH RR 56; (1985) 7 EHRR 429 268 , 269 , 34 1, 353
Republic of Ireland v The United Kingdom (1979-80) 2 EHRR 25 135, 145
Robertson (Stewart) v HM Advocate; Gough (Stephen Peter) v HM Advocate; aka: Robertson ,
Petitioner; Gough v McF adyen [2007] SLT 1153 309
Rogers v Secretary of State for the Home Dep artment [1973] AC 388 HL. 315
Rylands v Fletcher (1868) LR 3 HL 330 264

SW and CR v UK [1996] 2 1 EH RR 363; [1991] 4 All ER 481 238-240

Schmidt and Dahl strom v Sweden [1976] 1 EH RR 632 33 1
Secretary of State for Justice v W alker and others [2008] EWCA Civ 30 179
Secretary of State for the Home Department v JJ and others [2008] 1 AC 385; [2007]
3 WLR 642; [2007] UKHL 45 76, 174, 190
Secretary of State for the Home Dep artment v MB [2007] UKHL 46, [2008] 1 AC 440,
HL ; affirming [2006] EWCA Civ 1140; [2007] QB 4 15 CA; reversing [2006] EW HC
1000 (Admin) 68, 72
Serif v Greece (App 38178/97, Judgment of 4 Decemb er 1999 (200 1) 3 1 EHRR. 20 297
Shanaghan v United Kingdom (2001), see Jord an and others v United Kingdom ; McKer r v
UK; Kelly and Others v UK; Shanaghan v UK-
Sheffield and Horsham v U K (1999) 27 EH RR 163 269 , 270
Sheffield Cit y Council v E (also known as Re E (Alleged Patientl ) [2005] 2 WLR 953 34 1, 342
Sheffield City Council v Smart [2002] EWCA Civ 4; [2002] LGR 467, CA 256
Sheldrake v DPP; Attorney-General's Reference No 4 of 2002 , [2004] U KH L 43; [2005]
1 AC 264; [2004] 3 WLR 976, HL; reversing in part [2003] EWCA Crim 762; [2003]
3 WLR 1153, CA; reversing [2003] EWHC 273; [2004] QB 487, DC 219
Shobiye v UK (1976) ECmH R 178

Ixxvi
xxxiiI I
 TABLE OF CASES D
Sidabras and Dziautas v Lithu ania (Apps 55480/00 and 59330/00), Ju dgment of 27 July 2004;
(2004) 42 EH RR 104 255
Sigsworth, Re [1935] Ch 89 67
Sigurjonsson (Sigurdur A) v Iceland Judgment of 30 Jun e 1993, Series A No 264; (1993) 16
EHRR 462 328
Sijakova and others v FYRM (App 679 14/0 1), Decision of 27 April 2004 152
Siliadin v France (App 733 16/01), Jud gment of 26 July 2005; (2006) EH RR 16 152-1 54, 157
Silver and others v UK (1983) 5 EHRR 347 .43, 56, 57
Smith v Scott 2007 SC 345 69
Soering v United Kingdom (AI16 1) (1989) 11 EH RR 439 85, 137, 145
St Helens Smelting Co v T ipping (1865) 11 H L Cas 642 264
Staff Side of the Police Negot iating Board, T he, John Francis v T he Secretary of State for the
Home Departm ent [2008] EWHC 1173 (Admin) 330
Stec v United Kingdom (2006) 43 EH RR 1017 37
Steel and Morris v Un ited Kingdom (App 684 16/01), Jud gment of 15 February 2005 ; (2005)
4 1 EH RR 22 213
Steel and others v United Kingdom (App 24838/94), Jud gment of 23 September 1998;
(1998) 28 EHRR 603; [1998] Crim LR 893; 5 BHRC 339 170, 191, 243, 325
Stewart v Un ited Kingdom (1984) 39 DR 162, ECmH R 119
Stichting Collectieve Ant ennevoorziening Go uda and others Case C-288/89 (judgment of 25 July
1991 [1991] EC R 1-400 7) 305
Streletz v Germany (App No 34044/96) ; Kessler v Germ any (App No 35532/97); Krenz v
Germany (App N o 448 01198) (200 1) 33 EH RR 3 1... 116,120
Sturges v Bridgman (1878) 11 Ch D 852 CA. 264
Sumukan Ltd v Commo nwealth Secretariat [2007] EWCA Civ 243 [2007] 1 CLC 282 .207
Sunday T imes v Un ited Kingdom , 26 April 1979 (App No 653 8/74); (1979) 2 EH RR 245 .307

T v United Kingdom (App 2472 4/94); and V v United Kingdom (App 248 88/94) Jud gments
of 16 December 1999; (2000) 30 EH RR 121... 134, 145
T P v UK [2001] ECHR 28945/95 212
T amm er v Estonia (2001) 37 EH RR 857 308
T atishvili v Russia (App No 1509/02 ); (2007) 45 EH RR 52 209
Thobu rn v Sund erland City Council [2003] QB 151 361
Thomp son and Venables v News Group Newspapers [200 1] 2 W LR 1038 253, 257
Tol stoy Miloslavsky v UK (N3 23) (1995) 20 EH RR 442 3 14
Tomasi v France (1992) 15 EH RR 1 146
T remblay v France (Application No 37 194/ 02) 164
T yrell v United Kingdom (App 28188 /95), Decision of 4 September 1996; T yrer v UK Jud gment
of 25 April 1978, Series A, N o 26; (1979-80) 2 EH RR 1 129

Van der Leer v Netherlands (1990) 12 EH RR 567 172

Van der Mu ssele v Belgium , Series A, No 70 (App No 8919/80 ); (1984) 6 EHRR 163; [1983]
EC H R 89 19/80 158,222
Van Droogenbr oeck v Belgium (1982) 4 EHRR 443 155,157
Van Oosterwijck v Belgium (1981) 3 EH RR 557 268
Vo v France (2005) 40 EH RR 12 120, 344

W , X, Y and Z v United Kingdom (App 343 5-38/67) ; (1968) 11 YB 562 156, 157

~
Ixxxiii I
D UN LO C KING
HUMAN RIGHTS

Wad dington v Miah alias Ullah [1974] 1 WLR 683 .232

Wainwright v Home Secretary [2003] UKHL 53; [2003] 3 WLR 1137 253, 254, 257, 258
Wainwright v United Kingdom (2007) 44 EH RR 40 258
Wandsworth London Borough Council v Michalak [2003] 1 WLR 617 CA 388, 389, 390, 395
Watson v Durham University [2008] EW CA Civ 1266, CA 376, 379
Welch v UK [1 995] 20 EHRR 247 236
Wh aley v Lord Advocate [2007] UKH L 53; 2008 SC (H L) 107 332
Whitel y v Chappell (1868) 4 LR QB 147 67
Wilson & the NUJ and Others v United Kingdom (2002) Th e Times, 5 July 2002 328
Wilson v First County T rust Ltd (No 2) [2004] 1 AC 816; reversing [2001] EWC A Civ 633,
[2002] QB 74 69
Worm v Austria (App No 22714/9 3) (1998) 25 EH RR 454 3 16

x v Austria (1979) 18 DR 154, ECmH R 173

X v Belgium (1969) 12 Yearbook 174, ECmH R 119
X v France (App 5442/ 72), Decision of20 December 1974 (1974) 1 DR 4 1.. 289
X v United Kingdom (App 8121/78), Decision of 6 March 1982 (1982) 28 DR 5 .289
X, Y and Z v United Kingdom (1997) 24 EH RR 143 34 1,353
Xenides-Arestis v T urkey [2006] ECHR 46347/99 376

Y v United Kingdom [1994] 17 EH RR 238 130

Young v Bristol Aeroplane Co Ltd [1944] KB 718 CA 375
Young v United Kingdom (App No 60682/ 00); (2007) 45 EH RR 29 207
Young, James and Webster v United Kingdom, Judgment of 13 August 1981, Series A, No 44;
(1982) 4 EH RR 38 329

Z and oth ers v United Kingdom (App 29392/95) (ECH R), Judgm ent of 10 May 2001 ; (2001)
10 BHRC 384; (200 1) The Times, 31 May 212
Zarb Adami v Malta (App No 17209/02); (2007) 44 EH RR 3 , 157
Zentrum Omkarananda and the Divine Light Zentrum v Switzerland (App 8118/77), Decision of
19 March 1981 (1981) 25 DR 105 289

Ixxvi I
 TABLE OF STAT UT ES D
- . TABLE OF STATUTES .f-~

Abortion Act 1967 109 s 160 312

Act of Union of Parliaments 1706 60 Criminal Justice Act 1991 237
Act of Union of Parliaments 1707 60 s 35 70
Acts of Union 1800 60 s 35(1) 70
Agricultural Holdings Act 1986 390, 39 1 Criminal Justice Act 2003 151, 173, 194, 204
Aliens Act 1905 57 s 114 194
Aliens Act 1914 57 Criminal Justice and Public Or der Act 1994 324
Animal Health Act 1981- s 25 172
s 32 294 Crown Proceedings Act 1600 364, 379
Anti-terrorism, Crime and Security Act Crown Proceedings Act 1947 366, 373
2001 42, 75, 173, 189, s1 359
324,396
Pt 4 75, 175 Data Protection Act 1998 303
s 21 138, 396, 397 Disability Discrimination Act 1995 382, 395
s 23 138, 174, 175, 191, Dru g T rafficking Offences Act 1986 236
396,397
s 25 138 Education (No 2) Act 1986 39, 77, 130
Asylum and Immigration (Treatment of Education Act 1996 39, 77
Claimants, erc.) Act 2004- s 548 131
s 19 349, 350 s 548(1) 132
s 19(3)(b) 350 Equal Pay Act 1970 363, 379, 381, 395
Equality Act 2006 286 , 363, 379, 382,
Bill of Rights 1688- 89 8, 55, 60, 85, 195,226, 387,395,
228, 230, 296, 365 398
Art 9 302, 319 European Communities Act 1972 55, 60, 66, 231
s2 361
Child Support Act 393 Extradition Act 2003 189
Children Act 1989 2 15 s 64(2) 189
s 25 183
Children Act 2004- Forced Marriage (Civil Protection) Act 2007 339
s 58 132 Freedom of Information Act 2000 178, 303
Children and Young Persons Act 1933 132
Civil Aviation Act 1982- Gender Recognition Act 2004 270
s 78 265 Sch 1 270
Civil Contingency Act 2004 176 Genocide Act 1969 231, 232
Civil Partnership Act 2004 363, 379, 382, 394
Colonial Laws Validity Act 1865 377 Habeas Corpus Act 1679 60
Commonwealth Immigrants Act 1962 57 Homicide Act 1957-
Commonwealth Immigrants Act 1968 57 s2 218
Constitutional Reform Act 200 5 3, 61 s 2(2) 218
Consumer Credit Act 1974 70 s 4(2) 50
s 127(3) 70 House of Lords Act 1999 55, 61
Conventicle Act 1664 303 Housing Act 1985 266
Criminal Evidence (Witness Anonymity) Act s 113 388
2008 224, 227 Housing Act 1996-
Criminal Justice (Terrorism and Conspiracy) s 185(4) 70
Act 1998 173 H uman Fertilisation and Embryology Act
Criminal Justice Act 1988- 1990 343 , 344
s 134 144 Sch 3, para 6(3) 248

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D U N LO C KI N G
HUMAN RIGHTS
Human Rights Act 1998 1, 8, 15, 21, 24-26, Sch 1 64, 371
28, 29, 36, 50, 54, 58, 59, Sch 1, Pt 1.. 50, 63, 70, 102, 183, 396
61-67, 69, 71, 72, 74, 75, Sch 1, Pr Il 63, 70
78-81, 92, 93, 100, 104, 111, Sch 1, Pt III 63
118, 178, 186, 188,246,247, Sch 2 63, 64, 71
250-253, 259 , 266, 274, 296 , Sch 3 63,64
3 16,3 50,3 54,365-367, Sch 3, Pr I 63, 75
37 1-373, 379, 380, Sch 3, Pt Il 63, 77
388, 394, 396 Sch 4 63,64
ss 1-1 7 62 Hunting Act 2004 72, 254-256
ss 1- 10 63
s1 63, 64 Immigration Act 1971 232
s 1(1) 360, 366, 371, 389 Immigration and Asylum Act 1999-
s 1(4) 65 Pt 11... 73, 208
s2 63-65 s 35(8) 208
s 2(1) 65 s 65 185
s3 63, 66-69 Incitement to Disaffection Act 1934 310, 311
s 3(1) 66 s1 292, 310
s4 63, 66, 68, 70, 71, 73, s2 292
80-82, 354, 372 Insolvency Act 1986 392
s 5 63, 66, 71 s 283(1) 392
s 6 63, 69, 71, 72, 92, 372 s 352 50
s 6(1) 71, 100, 188 s 436 392
s 6(3) 71 Interception of Communications Act 1985 56, 262
s 7 63, 69, 72, 182 s2 262
s 7(1) 188, 372 International Criminal Court Act 2001 23 1
s 7(3) 372
s 7(4) 372 Magna Carta 12 15 8, 9, 55, 60, 61, 194,
s 8 63, 73 226,228 ,360,361 , 363
s 8(1)-(3) 73 CI 28 194
s 8(1) 372, 373 Cl 29 195, 229
s 8(3) 372 Cl 36 62
s 8(4) 372 CI 38 62
s 10 63, 64, 68, 71, CI 39 62, 360
73, 372 Cl 40 62, 359 , 360
s 10(2) 73 Magna Carta (1297 Version) 360, 361
s 10(7) 63 Cl I 62
ss 11-22 64 CI9 62
s 11 74, 316, 372 CI 29 62
s 12 74, 316, 372 Malicious Communications Act 1988 293
s 13 .74,280,288, 316, Matrimonial Causes Act 1973 354
320,372 s 11(c) 354
s 13(1), (2) 288 Mental Health Act 1983 184, 258
ss 14-1 7 74 s 72 73
s 14 75, 77 s 73 73
s 14(1) 75 Misuse of Drugs Act 1971 289
s 15 77 s 5(4) 218
sI5( 1) 75 s 28 218
s 16 .42 Murder (Abolition of the Death Penalty) Act
ss 18-22 63 1965 8, 109
s 18 78
s 19 78 National ity, Immigration and Asylum Act 2002-
s 19(1)(a), (b) 78 s 125 73
s 19(2) 78 Sch 8 73
s 20 79 Northern Ireland (Emergency Provisions) Act
s 21 67, 79 1978-
s 22 79 s1 171

Ixxvi I
 TABLE OF STATUTES D
Offences against the Person Act 1861. 132 Sexual Offences (Amendment) Act 1976-
s 62 73 s1 238
Sexual Offences Act 2003 73
Slave Tra de Act 1807 6, 149, 163
Parliament Act 1911 55, 60
Slavery Abolition Act 1833 149, 163
Parliament Act 1949 55, 60
Special Immigration Appeals Commission Act
Petition of Right 1628 8
1998 66
Police Act 1996 33 1
Statute Law Revision Act 1863 61
s 64 330
Suicide Act 196 1.. 105, 108,296, 378
s 91 330
s 1 295
Police and Criminal Evidence Act 1984 32, 193
s 1(1) 295
s 78 274, 275
s2 295 , 296
Prevention of T errorism (Tempo rary Provisions)
s 2(1) 105, 106, 295
Act 1989-
s 2(2) 295
s 16A 219
s 2(4) 106, 295
Prevention of T errorism Act 200 5 .42, 76, 174,
175, 189
Terrorism Act 2000 173, 324
s 1 76
s1 317
s2 192
s 11(2) 219
s3 192
Terro rism Act 2006 3 19, 324
Protection from Eviction Act 1977 50
Th eatres Act 1968 303
Public Order Act 1936 323 , 324
s 1 323
Valerie Mary H ill and Alan Monk (Marriage
Public Or der Act 1986 289, 324
Enabling) Act 1985 348
s 12 324
s 17 311
War Crimes Act 1991.. 23 1, 23 1
s I8 311
War Damage Act 1965 23 1, 232
s 18(1) 334
Weights and Measures Act 1985 36 1

Race Relations Act 1965 311, 363, 379, 382

s 6( 1) 312 Table of Statutory Instruments
Race Relations Act 1968 382
Race Relations Act 1976 286, 382
Adoptio n (Nort hern Ireland) O rder 1987
Race Relations (Amendment) Act 2000 382
(51 1987 No 2203) 352
Registration of Business Names Act 1916 57
Regulation of Investigatory Powers Act 2000 262
Gender Recognition Act 2004 (Comme ncement)
Rent Act 1977 394
O rder 2005 (51 2005 No 0054) 270
Sch, paras 2, 3 394
Road Traffic Act 1988 219
Human Rights Act 1998 (Amendment) Order 2005
s 5(1) 219
(51 2005 No 1071) 76
s 5(2) 219
H uman Rights Act (Designated Derogation)
Schoo l Standards and Framework Act 1998....... 130, 131, O rder 2001 (51 2001 No 3644) 75, 174, 189,
145 396 , 398
s 131 131
Scotland Act 1998 54 Mental H ealth Act 1983 (Remedial) Orde r 200 1
Sex Discrimination Act 1975 363, 379, 38 1 (51 200 1 No 37 12) 73

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 D U N LOC KI N G
HUMAN RIGHTS

_TABLE OF INTERNATIONAL
--LEGISLATION .1---------
Abolition of Forced Labour Convention Commonwealth of Independent States
(ILO No 105) (1948) 149, 157, 325 Co nventio n on H uman Rights and
African Charte r on H uman and Peoples' Fundamental Freedoms of the (1995)
Rights (198 1) (the Banjul Charte r) 188, 402 (M insk Convent ion) 51, 188, 404 , 407
Art 8 284 Art 11 306
Art 9 306 Congress of Vienna 1815 6
Art 20 339, 357 Co uncil D irective 89/552/EC 305
Art 68 404 17th Recital 305
African Charter on the Rights and W elfare of Co uncil Framework Decision 2002/584/JHA
the Child (1990)- (of 13 June 2002) on the European Arrest
Art 48 404 warrant and the surrender proceedures between
African Unity Charter .402 Member States (originally Agreed at the Laeken
Art II .402 Summit in December 2001.. 188
Art III 403 Co uncil of Europe Convention on Action
American Bill of Rights 85 against T rafficking in Hu man Beings
American Con ventio n on Human Rights (1% 9) (2005) (CETS No 197) 149, 150, 160 , 163
(Pact of San Jose, Costa Rica) 15, 188, Covenant of th e League of Nat ions-
40 1, 402 Art 2 1 9
Art 3 .40 1
Art 12 284 Declaration of Arbroath (1320) 55
Art 13 306 Declaration of Independance (America) (1776) 8, 19 1
Art 17 339, 357 Declaration of the Rights of Man (France)
Art 18 .40 1 (1789) 8, 233
Art 19 40 1 Declaration of T okyo (1975) 125, 140
Art 20 .40 1 Declaration on the Elimination of All Forms
Art 21 40 1 of Int olerance and Discrimination Based on
Art 22 40 1 Religion or Belief (1981) 284 , 384
Art 23 .401 Declaration on the Elimination of All Forms
Art 24 40 1 Racial Discrimin ation (1% 3) 383
Art 25 40 1 Art 1 383
American D eclaration of the Rights and Du ties Declaration on the Right s of Persons Belonging
of Man (1948) 400-402 to National or Ethnic, Religious and Linguistic
Arab Charter on Human Rights (1994) .405-407 Min orities (1992) 384
Art 7( 1) .406
Art 7(2) 406 European Comm unity T reaty, Protocol on the
Art 30 284 system of public broadcastin g in the M emb er
Arab Charter on Human Rights (2004) .408 States 305
European Co nventio n against To rture and other
Bavarian Code (18 15) 233 Cruel, Inhuman or Degrading T reatment or
Beijing Rules (UN Standard Minimum Rules for Pun ishment (1984) 128
the Administration of Juvenile Justice) 217 European Co nvent ion Concerning Forced
r 13.1 2 17 Labour (1957) (ILO No 29) 151, 157, 325
r 20.1 217 European Convent ion on the Protection of
Hu man Rights and Fun damental Freedoms
Cairo Declaration (1990) 405, 407 (1950) 1, 2, 6, 7, 10,

Ixxvi I
 TABLE OF INTERNATIONAL LEGISLATION D
12, 13, 15, 21- 33, 35, 36, 38, Art 5(1)(c) 76, 168-1 70, 181, 182,
39, 4 1-43 , 45-47, 49-59, 61-75, 185, 189
77-8 1, 84, 86-90, 97, 98, 100, Art 5(I) (d) 76, 168, 169, 178, 182,1 89
101, 105, 106, 115, 117, 118, Art 5(1)(e) 76, 168, 169, 178,
120, 127, 128, 130, 138- 140, 182-1 84, 189
150, 152, 161, 163, 166, 168, Art 5(1)(f) 76, 168-1 70, 178, 184,
170, 172, 173, 177, 178, 185, 189, 349, 396
183-1 84, 186-1 88, 193, 197, Art 5(2) .4 1, 45, 167, 169, 171
204, 206,2 10,2 17,218, 222, Art 5(3) .41,45, 167, 169,
224 , 228 , 229 , 236, 238 , 240, 171, 172,21 7
24 1, 243, 245, 246, 249, 252, Art 5(4) .45, 70, 73, 134, 167,
254, 257-259, 26 1, 266, 268 , 169, 171, 179, 184
279-282, 284-290, 293, 296 , Art 5(4)(a) 179
297 , 300-302, 304, 305, 307, Art 5(5) 4 1, 167, 169-1 72
308,3 16,3 17,320,323 ,325 , Art 6 36, 43, 50, 63-65, 70, 73,
326, 335-340, 342, 343, 346, 87, 137, 139, 168, 169, 171,
347, 350, 351, 353-355, 366, 180, 193, 197, 204- 213, 215,
367, 371, 372 , 374, 380, 384, 216, 22 1, 226-228, 240, 244,
385, 389, 39 1, 394, 398, 399, 245, 259, 26 1, 265, 272, 275,
40 1,404,407,408 351, 39 1
Art 1 36, 63, 70, 93, 98, 100, Art 6(1) 57, 70, 134, 192, 206,
137, 153,2 15,297,371 210, 2 12,213,2 16,2 17,
Arts 2- 14 36 221, 225, 227, 236, 244
Arts 2- 12 358, 360, 366, 371, 379 Art 6(2) 50, 206, 215, 217-219,
Art 2 36, 40, 43, 45, 63-65 , 227, 244
75,83 ,84,86- 107, 112-11 7, Art 6(3) 193, 206, 211, 220, 225, 227
120, 137, 175, 296, 305, 343, Art 6(3)(a) 220 , 221
344,396 Art 6(3)(b) 220, 221
Art 2(1) 84,8 5, 98,104,11 7-11 9 Art 6(3)(c) 215, 220-222
Art 2(2) 84, 86, 89-9 1, 117 Art 6(3)(d) 215, 220, 222, 223
Art 2(2)(a) 89-9 1, 112, 119 Art 6(3)(e) 220, 224, 225
Art 2(2)(b) 89-9 1, 118, 119 Art 7 36, 40, 43, 63-65, 75, 168,
Art 2(2)(c) 89-9 1, 118, 119 193, 197,229, 233-235,
Art 3 36, 39, 40, 44-46, 237- 246, 259, 275
63-65, 75, 85, 86, 88, 105, Art 7(1) 116, 235- 237 , 245
106, 122, 125, 127-1 30, Art 7(2) 235 , 245
132-1 35, 137-1 39, 141, Art 8 36, 37, 42, 43, 45, 46, 49,
169, 212, 259, 56, 57, 63-65, 72, 73, 87, 105,
271, 343 106, 169, 212 , 247, 248, 252,
Art 4 36, 40, 43, 63-65 , 147, 254- 263, 265-269, 271-278,
149, 150, 152-1 55, 308, 340, 342-344, 346, 347,
158-1 60, 163 351-354 , 366, 373-376, 393,
Art 4(1) 40,7 5, 150, 155, 156 394
Art 4(2) 151, 155, 156, 158, 222 Art 8(1) .48, 257, 266, 278 , 391
Art 4(3) 151, 157, 158 Art 8(2) .48, 257 , 258, 261, 267,
Art 4(3)(a) 155 271, 278, 344 , 39 1
Art 4(3)(b) 156 Art 9 36, 42, 43, 46, 63-65, 74,
Art 4(3)(d) 158, 159 90, 105, 106, 138, 169, 280,
Art 5 36, 42-44 , 63-65 , 76, 77. 282-293, 297, 300, 326,
152, 155, 165, 166, 169, 340,35 1
174-1 77, 180-1 85, 187, Art 9(1) 284,294,297, 310
190-1 92, 262, 397 Art 9(2) 284, 292-294, 297
Art 5(1) .41,45,73,75, 155, 166, Art 10 36,43 , 57,63-65, 181,2 13,
169-1 71, 177, 180, 282, 285, 293, 302, 3 0~
182, 183 308-3 10,3 14,3 16,3 19,
Art 5(1)(a) 76, 168, 169, 179, 189 326, 333, 334
Art 5(1)(b) 76, 168-1 70, 178, 179, 189 Art 10(1) 306,307,309,3 10,3 19

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D U N LOC KI N G
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Art 10(2) 292,307-3 11, 316, 317, 319 European Convention on the Protection of
Art 11 36,63-65,72, 168, 181, Hum an Rights and Fundamental Freedoms
282, 285, 322, 323, (1950), Protocol 3 29
326-333, 336 European Convention on the Protection of
Art 11(1) 328, 330 Hu man Rights and Fundamental Freedoms
Art 11(2) 330, 332 (1950), Protocol 4 172
Art 12 36, 43, 56, 63-65 , 247, Art 4 172
248, 268, 269, 277, 278, European Convention on the Protection of
340, 342-35 6, 395 H uman Rights and Fundamental Freedoms
Art 13 36, ,4 1,43 ,44,46, 57,64, (1950), Protocol 5 29
65, 87, 137, 212, 259, European Convention on the Protection
261, 262, 265, 266, 271, of H uman Rights and Fund amental
272, 288 , 330, 351, 359, Freedoms (1950), Protocol 6 38, 39, 43, 63,
360, 365-367, 371, 373, 75, 85, 366
375, 379 Art 1 63, 360
Art 14 36-38, 43-45, 63-6 5, 70, 72, Art 2 63
105, 106, 114, 115, 158, Art 6 360
175, 191, 271, 272, 285, European Convention on the Protection of
343,344,35 1-3 53,360, Hum an Rights and Fundamental Freedoms
366, 373, 38 1, 384, 385, (1950), Protocol 7 29, 43
387-398 Art 5 248, 277, 278, 356
Art 15 .40,4 1,4 5,77, 151, 174, 397 Art 7 277
Art 15(1) 135, 397 European Convention on the Protection of
Art 15(2) .40 Human Rights and Fundamental Freedoms
Art 15(3) .40 (1950), Protocol 8 29
Arts 16-18 63- 65,360,366 European Convention on the Protection of
Arts 19-5 1 33 Human Rights and Fundamental Freedoms
Art 19 77 (1950), Protocol 9 29
Art 21 51 European Convention on the Protection of
Art 22 51 H uman Rights and Fundamental Freedoms
Art 25 87, 385 (1950), Protocol 10 29
Art 25(1) 26 1 European Convention on the Protection
Art 27(1) 386 of Human Rights and Fundamental
Art 27(2) 90 Freedoms (1950), Protocol 11.. 29- 31, 33, 38,
Art 28 45, 136 46, 385
Art 33 .44 Art 5(2) 385
Art 34 .46 European Convention on the Protection
Art 35 .46 of Huma n Rights and Fundament al
Art 38 141 Freedoms (1950), Protocol 13 29, 43, 57,
Art 4 1 373 65, 80, 85, 371
Art 46 87, 376 Art 13 64
Art 47 50, 51 European Convention on the Protection of
Art 50 88 Human Rights and Fundamental Freedoms
Art 57 77 (1950), Protocol 14 29
Art 64 39 European Convention Relating to the Status
European Convention on the Protection of Refugees (1951) 12, 13, 325
of Hum an Rights and Fundamental Art 15 325
Freedoms (1950), Protocol 1 39, 43, 63, 77, Art 26 168
80, 169, 366, 371 European Union Charter of Fundamental
Art 1 .45, 46, 63- 65, 72, 272, Rights (2000) 12, 13, 21, 304, 305,
309, 343, 360, 376, 392 327, 336 , 338
Art 2 39, 43, 63-6 5, 75, 77, Art 9 340, 357
134, 169, 360 Art 10 297
Art 3 39, 43, 63, 64, 360 Art 11 305
European Convention on the Protection Art 12 327
of Human Rights and Fundamental Art 51 13
Freedoms (1950), Protocol 2 29, 31, 51 Art 52(3) 297, 305

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 TABLE O F INTERNATION AL LEGI SLATION D
Art 52(5 ) 14 International Co nvent ion on the Suppress ion and
Puni shment of the C rime of Apartheid (1973) ........383
Forced Labour Co nvent ion (19 32) Irish Co nstitution-
(ILO No 29 ) 149 , 151, 157, 32 5 Art 4 1.3.2 3 50, 355
Art 2(1) 154 Irish Constitution Act (1995), Fifteent h
Freedom of Association and Prot ection of th e Am endment 351
Right s to Organise Co nvent ion (1948) 321
French Co nstitut ion 1791 233 Norwe gian Act on Exemption from Military
Art 1 298 Service-
s 19 156
General Assembly Resolution on respect for s 20 157
human right s and freedoms without distinction
as to race, sex, language or religion (47/1 35 of Organisation of American States (1951) 400
18 December 1992) 384
Geneva Conventions 12, 142 Organisation of African Uniry Co nvent ion
Ge neva Co nvent ion, N o 4- Governi ng Specific Aspects of Refugee Problems
Art 78 188 in Africa (1969) -
Art 103 188 Art15 .404
Ge rman Penal Cod e (1871) 233
Paris Princip les 406
H ague Convention 12 Protoc ol on th e Establishment of an African Court
on Human and Peoples' Rights (1998) -
Inter-American Conventi on on the Forced Art 35 404
Di sappearance of Persons (199 4) .40 1, 402 Protocol to the UN Conventi on against
Int ernational Covenant on Economic , Social T ransnational Organ ised C rime (UNTO C) 2000,
and C ultural Right s 17, 23, 384 known as the Protocol to Prevent , Suppress and
International Covenant on Civil and Political Punish Trafficking in Persons, especially W om en
Right s (1966) 17, 22 , 23, 116, and C hildren 161
234, 245, 32 5,
33 8,384 Rom e Statute of th e Int ernational C riminal Court
Part III 83 (1998) 245
Part IV 166 Art 22 233
Art 6 83, 104, 116 Art 23 233
Arts 9-1 3 166, 177
Arts 9-12 190 Schengen agreement 30, 34
Art 12 168 Single European Act 1987 29
Art 15 233, 235 Slavery, Servitude, Forced Labour and Similar
Art 18 284 Institutions and Practices Convent ion (192 6)
Art 19 306 (as amend ed by the 195 3 Proto col) 6, 149 , 150, 154
Art 21 32 5 Statute of the Co uncil of Eur ope 27
Art 22 325 Art l Ia) 27
Art 23 33 9, 356 Supp lement ary Co nvent ion on th e Abolition of
Int ernational Covenant on Civil and Political Slavery, th e Slave Trade, and Institution s and
Rights (1966 ), Optional Protocol One 166 Practices Similar to Slavery 154
International Covenant on Economic, Social
and C ultural Right s (1966) 17, 22 , 32 5 T reary of Amst erdam (1997) 30
Art 8 325 T reaty of London (194 9) 27, 59
International Co nvent ion on the Elimination Treary of Rom e (EEC Treary) (1957) 29,254
of all forms of Discrimination against Women Treary of Versailles (1919) 7, 26
(1973) (CE DAW) 22, 384 T reaty of We stphalia (1648) 11, 370
International Co nvent ion on the Elimination of Treary on the European Union (1992) (Maastricht
all form s of Discrimin ation against Women Treaty) 30
(CE DAW) Optional Protocol 1999 384
Art 21 384 United N ations Cha rter. 97, 403, 405
Int ernational Co nvent ion on the Elimin ation of Art 1 .369
all forms of Racial Discrimination (1966) Art 2 368
(CERD) 383 Art 5 37 1

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Art 19 37 1 United Nations Security Counci l resolution

Arts 39-51 369 1244/ 1999 370
Art 4 1 369,371 United Nations Stockholm Declaration (1972) 1,2, 13
Art 42 187, 369 United Nations Supplementary Convention on
Art 51 369 the Abolition of Slavery, the Slave Trade , and
Un ited Nat ions Convention against Torture and Institutions and Practices Similar to Slavery
other Cruel, Inhuman or Degrading Treatment (1956) 6, 149
or Punishment (1984) 127, 128, 142, Art 1 151
144, 146, 402 Art 7(b) 151
Art 1 126 United States Constitution (1791) 246
United Nations Convention on Consent to Art 1, s 9(3) 233
Marriage, Minimum Age for Marriage, and Eighth Amendment 85
Registration of Marriages (1964) 338, 357 Universal Declaration of H uman Rights
United Nations Convention on the Prevention (GA resolution 217 A (III)
and Punishment of the Crime of Genocide (10th December 1948)) 8, 15, 18, 22, 23, 27,
(1948) 54, 101, 231, 402 34, 59, 101, 127, 128,
United Nations Con vention on the 168, 234, 245, 302, 325,
Rights of the Child (1989) 133, 217, 325, 367 326, 336, 339, 384, 402 ,
Art 1 2 17 403, 408
Art 6(1) 84 Arts 3- 21 17
Art 15 325 Art 3 83, 166, 190
Art 37(d) 2 17 Art 4 149,150
Art 40(2)( iii) 217 Art 5 125, 128, 177
United Nations Declaration on the Right to Art 8 359, 365 , 366, 373 , 379
Development 18 Art 11 233 , 235
United Nations International Bill of H uman Art 13 168
Rights 384, 405 Art 16 339, 356
Un ited N ations International Covenant on Civil Art 18 284
and Political Rights .402 Art 19 304- 306 , 319
Art 26 397 Art 20 325 , 326
Un ited Nat ions resolution 40/33 29 November Arts 22-27 17
1985 217 Art 23 325
United Nations resolution 1386 (XIV) 20 November
1959 83 Vienna Convention on Consular Relations (1963) 11
United N ations resolution 1985/33 126 Vienna Convention on Diplomatic Relations (1961) 11
United Nations resolution 3452 (XXX) 9 December
1975 125

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 LIST OF FIGURES D
- _ LIST OF FIGURES*---

Essay instructions XVlll

1.1 Key terms 5

1.2 Timeline 8
1.3 The Council of Europe 10
1.4 Universality v cultural relativity 14
1.5 Connectivity of universal rights 16
1.6 Generational rights table 17
1.7 Dembour categories 20
1.8 Table of acronyms 22
1.9 Glossary of words and phrases 23

2.1 Timeline 29
2.2 Procedural Protocols 31
2.3 Categories of ECHR protection 36
2.4 Summary of Art 14 characteristics 38
2.5 Qualification of rights 43
2.6 Admissibility questions 46

3.1 Tab le of key dates 59

3.2 Basis for a written constitution 61
3.3 Contents of Human Rights Act 1998 63
3.4 Rules of statutory interpretation 67
3.5 Remedying incompatibility 73

4.1 Lawful deprivation of life 91

4.2 Lacunae 115

5.1 Justification of torture? 125

5.2 Definitions 126

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5.3 Dr Manfred Nowak 126

5.4 UN links 127
5.5 Types of mistreatment 135
5.6 The five techniques 136

6.1 Triangular slave trade 148

6.2 Slavery and related crimes 149
6.3 Exploitation of children 150

7.1 Prescribed criteria applicable to Art 5 169

7.2 Reasons for detention 178

8.1 Judicial independence 199

8.2 Types of bias 203
8.3 Summary of Art 6 principles 206
8.4 Summary minimum rights 220

9.1 Dicey's theory of parliamentary sovereignty 231

9.2 Development of the "nullum crimen' maxim 233
9.3 The 'Kevin test' 235

10.1 Breach of confidence - privacy 253

10.2 The Flitcroft guidelines 253
10.3 Aspects of private and family life 256
10.4 Environmental torts 264

11.1 Rights language table 281

11.2 Art 9 283
11.3 Equivalent Articles 284
11.4 Variety of beliefs 289

12.1 Freedom of speech and expression 306

13.1 Association and assembly 321

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13.2 Examples of domestic provision 324
13.3 Public Order Act 1986 as amended 324
13.4 International provisions 325
13.5 Associations 328

14.1 Contexts 341

14.2 Interconnections 344

15.1 Crown Proceedings Act 1600 364

15.2 Mind map 368

16.1 Anti-discrimination overview 381

16.2 International provisions 383
16.3 Applications alleging discrimination 386
16.4 Micha lak catechism 389
16.5 Types of discrimination 390
16.6 Art 14 steps for asylum seekers 396

17.1 African rights documents 404

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 INTRODUCTION TO
HUMAN RIGHTS
D
III INTRODUCTION TO
HUMAN RIGHTS . - - - - -
AIMS AND OB ECTIVES
• This book deals primarily with the European Convention on Human Rights
(ECHR) and the Human Rights Act (HRA) but , as human rights are of universal
concern, in chapter 17 there is wider discussion

• Chapter 1 provides an introduction whose objectives are indic ated below, and
Chapter 17 explains the global rights regime and regions other than Europe

• To provide an overview of the meaning of human rights and an introduction to the

ideas discussed in this book

• To consider the nature of the rights , freedoms, prohibitions and other concepts

• To consider some important histo rical rights developments

• To provide a table of key terms , acronyms and glossary

1.1 Overview I
Principle 1 of the Uni ted Na tions Stockholm Declaratio n 1972 states that

'Man has the fundament al right to freedom , equality and adequate conditions of
life in an environment of a qu ality that permits a life of dignity and well-being
and he bears a solemn responsi bility to protect and improve th e environment for
present and future generations.'

T his declared principle encaps ulates the essence of human rights. T he word 'freedom' as used
here represents the 'first genera tio n' of individu al civil and po litical right s arising from western
phi losophy and po litical theo ry.

'Equality' suggests a post Second World War socialist or 'second world' view as it wou ld have
been described during the Co ld War (I945 -89) meanin g that th e collective rights of peoples
should be accorded prominence rather than private and individual rights. An underlying

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implication may be that claims to individual rights are a luxury that many people in the world
cannot afford.

Individual civil and political rights are taken to mean the enjoyment of such things as personal
freedom of thought, conscience and religion, to associate with others, to fair judicial hearings
and the ability to follow whatever way of life one chooses, and similar privileges. On the other
hand, economic, social and cultural rights (rather than freedoms) tend to refer to the collective
need for everyone to have access to adequate provision for health, education, housing, job
security and pensions.

In order to achieve the types of objective in either category, however, it is argued that a third
generation of more amorphous collective minority and developmental rights should also be
recognised. Perhaps the most important of these must be a healthy and supportive environment
in which mankind can live and thrive, the 'adequate conditions of life' referred to in the
Stockholm Declaration .

Underlying and underpinning all aspects of the concept of universal human rights is the
absolute requirement that everyone, however rich or poor, whoever they may be and wherever
they may live, is entitled to respect from others and should be allowed and enabled to live an
adequately resourced and supported life in dignity. The earth should be used, protected and
improved by its inhabitants and enhanced for their children and grandchildren, the present and
future generations of which the declaration speaks , emphasising that mankind possesses a life
interest in, rather than full ownership of, the world - tenants of the planet, not freeholders .

It should be noted that not everyone accepts the universality of rights , and the philosophical
approach representing this alternative view is referred to as cultural relativism. There is thus a
fundamental divide in human rights between universalism and cultural relativism.

1.1.1 Hard and soft law

The fact that this is a Declaration also indicates another important thing about human rights: namely,
that many of them exist as aspirational 'soft law'. Globally, only a small proportion of human rights
are enshrined in and protected by 'hard ' or enforceable law, and where this is the case they are
restricted to particular defined rights in limited parts of the world, for example the ECHR. The
recognition and growth of human rights, like other human regimes, is always work in progress and is
difficult to measure on any meaningful scale because there is no entirely satisfactory objective rights
system that is humanly achievable. Circumstances constantly vary, and mankind is now caught up in
global warming and climate change momentum that is intimately connected to rights claims.

It is a truism that states place more importance on economic self-interest than on working
towards a fair system of global governance that respects and protects everyone. Promotion and
promulgation of human rights should be protected like the economic and trade interests
governed by the World Trade Organisation (WTO). This first chapter selects a few of the rights
issues that are vital for the world today, and examines them briefly.

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1.2 Rights and freedoms
The idea of natural rights arises from belief in natural law, that there were in nature gods or in
later times one God who created the universe , from whom everything springs and who makes
everything possible . From early primitive chthonic notions mankind developed a variety of more
sophisticated religious sentiments and beliefs, a common characteristic of which is that they
usually prescribe ways in which people should behave towards others, but without the flexibility
of positive law (human imposed law) that can be changed as circumstances require; so both
primitive natural law and religious beliefs and more sophisticated positive laws throughout the
ages have fed and continue to feed into the development of human rights.

1.2.1 Rule of law

Fundamentally modern rights and freedoms need to be based on the rule of law if they are to be
effective and enforceable, although this is a problematical and ambiguous concept that requires
explanation. Most modern states lay claim to running their affairs in accordance with their
interpretation of the rule of law, but if the European Union, China and the United States all
sincerely believe that they adhere to the rule of law, it quickly becomes obvious that their
respective visions differ considerably, one from another.

1.2.2 Separation of powers

One component theory supportive of the rule of law is that power should be divided and thus
limited in order to prevent too great a concentration in the hands of one individual or clique -
the doctrine of separation of powers.

' Unlimited power is apt to corrupt the minds of those who possess it.'
William Pitt the Eldet, 1770

'Power tends to corrupt, and absolute power corrupts absolutely. Great men are
almost always bad men.'
Lord Acton , 1887

The do ctrine that the principal state functions should be kept separate goes back to classical
times of the Greeks and Romans but was reformulated for the French Enlightenment by Baron
de Montesquieu. He identified the executive or government that proposes and carries out policy,
the legislature as makers of law, and the judiciary who interpret law. Keep them separate, goes
the theory, and oppression should be avoided.

The model currently works but imperfectly in the UK, with the executive effectively controlling
the legislature by the whipping system and the Prime Minister's ability to make and break other
ministerial careers, although the position of the judiciary has been strengthened by establishing
the Judicial Appointments Commission and Supreme Court under the Constitutional Reform

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D U N LOC KI N G
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Act 2005 , thus removing the senior judiciary from the legislature. In the United States the
separation between the three is much clearer.

1.2.3 Democracy
The ability to choose how one lives and is governed is at the root of democracy. This is another
key ingredient in the human rights mix and it too gives rise to a widely differing range of
interpretation in different parts of the world. To live in a truly democratic state means that the
way in which the justice system operates requires a broad and sympathetic approach to the
application of law by means of principles or rules of natural justice, not the same thing as the
rule of law. Some sense of what these fundamental ideas mean can be seen from the following
table of key terms. For any system or regime of human rights to operate, a reasonable and
workable version of these principles should be present.

1.3 Where did 'rights' start?

There is no simple or obvious answer to this question , but a few indicative examples are
considered here by way of introduction.

1.3.1 Slavery
One of the oldest institutions or practices accepted as normal by mankind until recent times is
slavery, which brings a variety of human rights questions into focus. In the past, 'civilisations'
became so reliant on slavery that eventually they could not function without it. Examples include
the ancient Egyptians, Greeks and Romans, and European settlers in the West Indies and United
States . In other places native peoples were subjugated and ill-treated by mostly European
colonialists in ways analogous to slavery, as in the case of Australian Aborigines, New Zealand
Maoris, throughout the African continent and in parts of Asia.

It is interesting that societies not only depended on slaves but mostly thought it quite natural
that some humans should be accorded a subservient civic status precluding virtually all rights and
dignity for the benefit of others. In this they were supported by different religions, including
Christianity. Enslavement of one human being by another is fundamentally and entirely
antipathetic to every modern idea of what is meant by human rights, representing as it does
negation and removal of virtually all indicia of humanity, but recognition of this is relatively
recent in the history of mankind.

English law
English law prides itself on being a protector of slaves' rights, despite the contradictions inherent
in the enthusiasm with which English slave traders (or 'merchant adventurers' as they saw
themselves) used to operate throughout the world. In the eighteenth century Lord Mansfield
pronounced in R v Knowles, ex parte Somersett, or Somerset v Steuart (1772) Lofft 1, 98 ER 499
that slavery was odious and quite unsupportable in any circumstances:

Ixxvi I
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KEY TERMS

Concept Meaning

Natural law The theory that law originates in nature so possessing general validity transcending
place and time , providing legitimac y that all peoples should recognise , support ing the
idea that human rights are universal

Positive law In a sense the opposite of natural law: the theory that law is imposed (posited) by (a)
human being(s) on others rather than by God or nature. It is law made by the
legitimate authority within a given state enacting rules of cond uct and stipulating
sanctions ensuring obedience

Religious law The belief that law comes neither from vague 'natural' sources nor ultimately from
humans, but is knowledge revealed by God governing all human affairs and behaviour.
Wider in scope than positive law, it also incorporates aspects of moral and ethical
behaviour and although administered by humans, it is believed to be holy and
unalterable, revealed through prophets and applied by clerics

Rule of law An expression of Dicey's theory about the British Constitution that individuals ' rights
are determined by clear and fair legal rules and not the arbitrary actions of any
authority ove r them. It includes the right to have legal disputes or prosecutions heard
by independent courts only when the law has been broken, with everyone treated
equally. More generally it is taken to mean a set of rules of fairness applicable
everywhere to safeguard justice and protect human rights

Separation of powers A theory originating with the Greeks and developed by the Romans having influence in
modern times as expressed by Montesqu ieu. Power should be divided between three
branches of state: the go vernment (execut ive), legislature (parliament) and courts
Gudiciary). The executive proposes and implements policy ; laws are made and changed
by the legislature; and breaches of law are adjudicated upon by the judges . Power is
divided and dictatorship of one person or group (and thus tyranny) is avoided

Democracy A political theory taken to mean representative government chosen by a wide

electorate who can change the government regularly. It tends to accept that the
majority is right (or should have its way) and implicitly incorporates ideas of freedom of
thought , opinion and choice, individual rights and the general presence of civil liberties

Rules of natural justice A general political philosoph y in a similar way to democracy or the doctrine of
separation of powers , but with more specific meaning as it can be split into particular
'rules' that should apply in all societ ies. An example is procedural fairness in court or
other judicial proceedings - the right to be represented, call wit nesses, have an
unbiased judge , and not to be forced to incriminate oneself

• Figure 1.1 Key term s

D .. The state of slavery is of such a nature, that it is incapable of being

introduced on any reasons, moral or political; but only positive law, which preserves
its force long after the reasons, occasion, and time itself from whence it was
created, is erased from memory: it is so odious, that nothing can be suffered to
support it, but positive law. Whatever inconveniences, therefore, may follow from a
decision, I cannot say this case is allowed or approved by the law of England; and
therefore the black must be discharged.'

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What Lord Mansfield meant was that slavery is totally contrary to natural law but that were it to
be legalised by human positive law it would be the law of the land, albeit repugnant and morally
unacceptable. His decision in any event only related to ownership of slaves within the realm .

The case arose because the slave James Somersett, who was owned by an American, had been
brought to England where he escaped. It became a cause celebre as people vied to take sides in
the litigation instituted to decide on his freedom and to determine whether in such a case he
became free simply by breathing English air. It was at that time by no means obvious which side
had the moral high ground, and indeed it is salurary to remember that when slavery was
eventually abolished by the Westminster Parliament in 1833, the Bishop of Exeter, who had
retained ownership of his 655 slaves right up to the bitter end, was compensated by the British
taxpayer in the sum of £12,700 for his loss. The slave trade had been outlawed by Parliament by
the Abolition of the Slave Trade Act 26 years previously in 1807, but the message had not sunk
home even in some high clerical palaces.

It was William Wilberforce MP and other colleagues known as the 'Clapham Sect' who
eventually forced the legislation . As the pre-eminent nineteenth-century naval power, Britain then
entered into various bilateral agreements with other European states which gave crews of navy
ships the right to board and search vessels in international waters to ensure that slave traders
were apprehended and slaves freed.

International abolition
The Congress of Vienna 1815 said that the slave trade was morally repugnant and inhumane and
although progress was made throughout the nineteenth century to remove the scourge of slavery, in
some places it lasted until recent times. Saudi Arabia and the Yemen did not abolish slavery until
1962 and in the preceding decade it was estimated that there were perhaps half a million slaves still
held in captiviry there and in the Middle East. In parts of Africa slavery still persists today.

It is perhaps not surprising, therefore, that despite all the nineteenth-century activity, the League
of Nations, which had been established in 1919 in response to the First World War, found it
necessary to promote a Slavery Commission in 1924 with a Slavery Convention of 1926
codifying international law. Needed still later was the 1956 Supplementary Convention on the
Abolition of Slavery, the Slave Trade and Institutions and Practices . It is estimated that there are
still up to 27 million slaves in the modern world.

Chapter 6 deals in detail with the prohibition of slavery and forced labour under the ECHR,
but the seeds were sown some two centuries ago by English common law and UK legislation .

1.3.2 Civil and human rights in Europe

Political factors
Towards the end of the nineteenth century the incipient decline of the British Empire and the
growing strength of a Germany lacking a maritime and colonial history with the glory, wealth

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D
and power that that would have provided seem to have destined the early part of the twentieth
century to early disintegration into the conflict of the First World War (1914-18) . By the 1940s
human rights had become a serious global issue because of atrocities committed in Europe and
Asia prior to and during the Second World War (1939-45) that prompted the establishment of
the United Nations Organisation in 1945.

Some of the causes of the Second World War lay in the nature and execution of the peace
arrangements established after the Great War. The Peace Conference was punitive to the defeated
states, and when the League of Nations was inaugurated in 1919 under the Treaty of Versailles, it
was given no human rights role to play, nor was it supported by the United States (see section
1.3.3) . Population transfers after 1918 opened the door to resurgence of an embittered and
humiliated Germany with a messianic leader mandated to redress the balance yet lacking any
coherent policy or idea of how Germany could rule the world if their ambitions had been
fulfilled.

These were all factors relevant to the need to establish a new rights era after 1945 . Those aspects
of human nature that allowed slavery to be tolerated up to modern times and elected a
government under which apparently civilised people could commit mass murder in factory
conditions were and still are part of the human psyche. Yet whilst all these things were
happening in the real world, philosophers and others were thinking deeply about what it is that
motivates people to act as they do, and planning for what they hoped would be a very different
world.

Philosophical influences
In the eighteenth century in western countries there had been recognition of civil rights that
were sparked by the American and French revolutions, and before that less violently and more
gradually in the 1689 'Glorious Revolution' in England when the Crown was forced to start
following an early parliamentary road to representative democracy, although Ireland and Scotland
escaped neither violence nor glory. Before these events, earlier roots can be identified which go
right back into the mists of pre-history, to codes of early civilisations and to the Greeks.

In Europe at the end of the Dark Ages philosophical discourse can be said to have started as far
back as 1088 when the University of Bologna was established. By 1400 there were some 30 or so
institutions that we would now call universities throughout Europe. They prospectively and
perhaps indirectly played their part in the advancement of thought that eventually led to the
Enlightenment. Although those were very different times to the present day, the seeds were being
sown, and there were many other influences that fed into the process.

Who can say, then, where human rights started? Mankind has always railed against oppression,
and different ages and societies have suffered under and fought it. From earlier civilisations and
their philosophers grew ideas that eventually became modern theory and practice of human
rights.

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One way of tracing thi s develop mental process of ideas and events th at helped to develop
mod ern human rights is to construc t a tim elin e, altho ugh thi s can only provid e a bri ef sum ma ry
of highly selected information. W ha t is im po rta nt depends on what you want to identify - ideas,
events, people, states, civilisations, dates and so on . The following timeline highli ghts a few of
th ese highly selective and subjective yet semi na l events th at have led to cur rent understand ing of
what is meant by human rights in th e U K. Another person's list could look very different but be
equally valid.

Date Event/document Reasons

1215 Magna Carta

1628 Petition of Right

1688 (English) Bill of Rights

1776 American Declaration of Independence

1790 French Declaration of the Rights of Man

1833 Abolitio n of slavery in UK

1948 Universal Declaration of Human Rights

1950 European Convention on Human Rights

1965 Abolition of death penalty in UK

1998 Human Rights Act

2002 Establishment of International Criminal Court

• Figure 1.2 T imeline

Al IIVTTY DDD
Timeline
Construc t yo ur own timel ine based on th e five events, documents, person s or
otherwise th at yo u consider th e most significant in th e development of human rights
using a thi rd column to set out your reasons: you can use th e exam ples given or
choose different ones.

T he subject- ma tte r discussed in th e preceding introductory pages provides insight into what
peopl e consider to be some of th e constituent elem ents of human rights. T he following self-
assessment qu estion s give an oppo rt unity to reflect on th is.

Ge nera l philosophi cal considera tions and specific exam ples of inhuman ity such as slavery onl y
begin to scratch th e sur face of th e nature of rights. T he following sections elaborate and con sider
other contributions to th e rights agenda.

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1.3.3 League of Nations
The League of Nations was established in 1919 but from the beginning it had a number of
defects that restricted its usefulness as an international body and that eventually led to its decline
and demise. It was largely unsupported by the USA, without whose backing as the emerging pre-
eminent world power it was doomed to fail. Its specific objectives did not include the protection
of human rights, although some of its wider aims were analogous, for example Art 21 of the

A '..
Covenant of the League of Nations imposed an obligation on its Members to:

secure and maintain fair and humane conditions of labour for men, women

® and children' [and to] 'secure just treatment of the native inhabitants of territories
under their control.'

The reference to securing just treatment for native inhabitants relates to colonial states' mandates
for territories under their jurisdiction and resonates with contemporary ideas of minorities and
self-determination. The only surviving body of that era operating today with continuing
significance is the International Labour Organisation (ILO), also dating from 1919.

The motivation for establishing the ILO was certainly humanitarian and in contemporary terms
would have been tied to and supported by the human rights agenda, as working conditions in
the nineteenth century had been grim and did not look set to change much after the first two
disastrous decades of the twentieth century.

Al IIVTTY DDD
Self-assessment questions
1 What do the events and documents listed in the Figure 1.2 timeline demonstrate:
(a) Modern societies could not have developed without the institution of slavery.
(b) Rights other than civil and political ones are unimportant.
(c) Only in the twenty-first century did criminal matters become the subject matter
of international human rights.
(d) Britain is the most important country in the development of human rights .
(e) All human rights can be traced back to Magna Carta.
(f) The failure of the League of Nations was due to lack of support by the United
States and lack of interest in human rights at the time.
(g) Religious leaders ought to have spoken out sooner against unfairness and
iniquity rather than taking advantage of western colonialism to enslave others?
2 You may not agree with any of the suggestions, in which case formulate your own
conclusions. You may decide that truth is multi-faceted. When you have decided,
consider what this tells you about the type and nature of human rights discussed so far.

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Ano ther progressive aspect of th e ILO is th at altho ugh half th e executive body of th e
Organisation was represente d by governments , th e other half comprised equal representation by
workers and employers. Its ongoi ng success can be judged by th e fact that on its fiftieth
anniversary in 1969 th e organisation was awarded th e Nobel Peace Prize.

1.3.4 Aftermath of the Second World War

As if to emphasise th e need for chan ges th e wo rd 'genoc ide' eme rged from th e chaos and ruin of
th e Second World War. People have killed each other since th e dawn of time, often in great
numbers, so the idea of one gro up or tri be or natio n atte mpting to exterminate another was
nothing new: Ge nghis Khan did it in th e early th irteenth cent ury and an assort ment of cavalier
Europeans through th e length and breadth of th e world ever since, or so it sometimes seems.
H owever, th e word 'genoci de' itself was coin ed by th e Polish scho lar Raph ael Lemkin during th e
Second World War by combining 'geno' (peo ple) and 'cide' (kill).

The persecution and wholesale massacre of a number of min orities and resultant chaos in 1945
acted as urgent stimulants for th e Allies to reinvent post-war solutions and avoid making th e same
mistakes as with th e failed League of Nations. Plannin g for the UN was undertaken during th e
Second World War and in 1945 th e Potsdam Conference, or Co nference of Berlin, took place in
which th e so-called tripart ite states of th e UK, USA and USSR (Soviet Un ion) partic ipated.

The destruction th at had been caused, ongoing ph ysical chaos on th e gro und and th e
incalculabl e human cost in death , injury, displacement and depr ivation are now almost
unimaginable, but were all factors th at help ed to lead to th e establishment of th e UN in New
York whilst the Co uncil of Europe was also set up with variou s rights objectives. Out of th e
latter grew th e European Co nventio n, Co mmission and Co urt of Human Rights.

The Council of Europe is an intergovernmental organisation with 47 Member States whose objectives are
to:
• protect human rights , pluralist dem ocracy and the rule of law

• promote awareness and encou rage the developme nt of Europe 's cultu ral identity and diversity

• seek solutions to problems facing European society includi ng discriminat ion against minorit ies, xenophobia,
intolerance, environmental prot ection , human cloning , Aids, drugs , organised crime, etc

• help consol idate demo crat ic stabilit y in Europe by backing polit ical, legislative and constitutional reform

• Figure 1.3 T he Co unci l of Euro pe

1.3.5 End of colonialism

The dem ise of th e last European colonial period occurred qui ckly after th e Second World War,
in some instances assisted by armed resistance as in Malaya, Kenya and Cyprus. T he remnants of

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the Portuguese, Spanish, Dutch, French and British empires disappeared, sometimes with
indecent haste considering the unpreparedness left behind. Confusion and worse were caused by
poorly drawn boundaries, weak political, economic and social systems , warring tribes and
factions, and inadequate ongoing support.

Other difficulties arose because of claims to minority rights. People who had not wanted to be
governed by colonial powers were sometimes equally unhappy to be governed by the emergent
ruling factions in the newly independent states, and religious and tribal differences that had been
ignored or subjugated under colonial regimes now came to the fore. Political or religious
minority claims of this kind helped to highlight the need to recognise other minority rights -
women, children, indigenous populations. Therefore, both in Europe as a direct result of the
Second World War and in much of the rest of the world because of the decline in European
colonialism, claims of minorities pointed to the need for development of human rights responses .

1.3.6 Diplomats and heads of state

The Treaty of Westphalia 1648 marked the beginnings of nation states which in turn began to
form modern ideas of citizenship. The 'new order' it started to establish in Europe based on
national sovereignty came to replace the Holy Roman Empire that had previously held sway; but
long before the seventeenth century the need for different peoples to communicate freely was
recognised, even if such discourse was sometimes more honoured in the breach than the
observance. Official envoys representing states travelled the world for millennia bearing messages
in times when, and to places where, that was the only way of communicating. Customary
international law developed to afford protection to those messengers, eventually leading to
present-day laws of diplomacy.

Special recognition has always been afforded to monarchs and heads of state and diplomatic law
functioned as an adjunct to this. Modern law is the result of work by the International Law
Commission and is contained in the Vienna Convention on Diplomatic Relations 1961 and the
Vienna Convention on Consular Relations 1963. The special rights accorded to heads of state
and diplomats are now based around the idea that communication is essential to the conduct of
international relations and even where there are serious differences between states it is better to
retain contact than to stop talking to each other. Only in extreme cases do states 'break off
diplomatic relations' and even then they are obliged to maintain dialogue through a neutral party
such as Switzerland.

For many years there was a general theory that rights afforded to heads and former heads of state
were inviolate, but the case of the late Chilean Head of State General Pinochet may alter this
perceived immunity from process in future (R v Bow Street Stipendiary Magistrate ex parte Pinochet
Ugarte (No 3) [1999] 2 WLR 827) . The general benefited from the then Home Secretary Jack
Straw's decision to use the dictator's health as a reason not to accede to a Spanish judge's request
that Senator Pinochet be extradited to Spain to answer murder charges relating to the
'disappeared' victims of his regime in Chile in the 1970s and 80s. The House of Lords had held

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that (former) heads of state are not entitled to unlimited immunity for crimes committed whilst
enjoying that status, but the circumstances precluded the legal issues being carried to conclusion.

1.3.7 Non-combatants, refugees and migrants

Rules also grew up to deal with warfare and the treatment of non-combatants. These are now
represented by the Geneva and Hague Conventions respectively, the former dealing with the
rules of war and the latter, humanitarian law. Other aspects of human rights grew out of earlier
international custom and later law.

The disruption of the Second World War created the need for large-scale resettlement of
refugees and realignment of peoples into new political entities, such as the creation of the
former Yugoslavia and transfer of land from Germany to Poland. The Convention Relating to
the Status of Refugees 1951 was designed to address European issues arising from the war, but
its continued application today has led to enormous problems as it was clearly not designed to
deal with and could not anticipate current world problems of political and economic mass
migration. Modern transport, cheap and widely available , and a flourishing market in people
traffickers hinders governments trying to apply the Convention to inappropriate categories of
person.

Treatment of migrants under international law has other human rights implications. There are
two broad approaches to what states' responsibilities ought to be towards aliens, ie the
international minimum standard of treatment approach, or the national or equality
treatment standard. Simply expressed, the former means that a state should apply minimum
internationally based human rights standards to aliens within their jurisdiction, regardless of how
the state's own citizens are treated, which is a form of universalism. The latter only requires the
state to give the same rights to foreigners as it does to its own citizens, however low those
standards might be, which is a species of relativism .

1.4 ED Charter of Fundamental Rights

The ECHR is the main treaty of the Council of Europe and is discussed in detail in Chapter 2.
The European Union (EU) also has its own Charter of Fundamental Rights which can be
accessed, together with explanatory notes, via the Department of Constitutional Affairs' website
listed under useful resources at the end of this chapter. The Charter brings together in one text
existing civil, political, economic and social rights of the EU's Member States, divided into six
chapters under the headings of:

• dignity
• freedoms
• equality
• solidarity

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ACTIVITY DDD
Self-assessment questions

1 T he underlying pr inciple of the Stockho lm De claratio n is th at True False

peo ple sho uld be ena bled to live dignified lives and enjoy
freedom s and equality in a decent environme nt.

2 T he rul e of law and th e rul es of natural justice are two different True False
ways of saying th e same thing.

3 H eads an d previous heads of state are enti tled to absolute protec- True False
tion from prosecution whatever th ey may have don e or been
respon sible for whilst acting as such.
4 T he Co nvention Relating to th e Status of Refugees 1951 still True False
applies to th e U K but is out of date and no longer suited to
dealing with tod ay's refugee probl ems.

5 O ne probl em faced by former colonised states is th at th eir peopl es True False

and boundaries do not fall within natural social and geogra phica l
areas bu t were art ificially imp osed by th e former colonial rul ers
for their own purposes.

• citizens' rights
• justice.

T he Cha rter has no legal force but is intended to operate as a political declaration. T he reason
th e EU agreed this separate document is th at th e ECH R does not apply to th e EU as an entity
nor to its constituent institution s, altho ugh it does apply sepa rately to all th e individual Member
States. T he C harter declares rights no t incl ude d in the ECH R such as th e right to vote in
Euro pean parliam entary elections, to establish bu sinesses and work th roughout th e EU and to
exercise othe r rights to information and complain to th e EU om buds ma n.

1.4.1 Legal scope of ED Charter

T he C harter does not create new powers nor extend any EU powers established in other treaties and
only applies to Member States when they are applying Union law. Specifically Art 5 1 states that:

®
'This Charter does not exte nd the scope of application of Union law beyond the
powers of the Union or establish any new power or task for the Union, or modify
powers and tasks defined in the other Parts of the Constitution.'

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Under Art 52(5) of th e Charter rules of interpretation establish th at mos t of th e solida rity
provision s are to be constr ued as guiding prin ciples rath er th an legal or human rights.

1.5 Jurisprudential nature of human rights

T here are ma ny different th eoretical app roaches to what is mea nt by human right s, and th e
impli cation s and pr acticalities of interp reting and applying th em . Some broad ideas or th eories
have been explained earlier in th is chapter and thi s sectio n provides a brief synopsis of selected
views on rights th eory.

1.5.1 Universal v cultural relativism

Perhaps the definin g character istic of mod ern human rights is th eir claim to be un iversal. T here
are many humane and civilised peopl e who would not hurt a fly, yet who would deny
categorically th at th ere are any such things as 'universal hu man rights'. T hey argue th at it is self-
evident that th e earth is populated by several billion peopl e who are un able to exercise rights and
freedo ms in any meaningful way. More easily understood is th e proposition th at by virtue of
being human everyone ought to be ent itled to universal rights. Such claim may be founded on
th e noti on of inn ate digni ty or respect th at sho uld be accorded to all and arising from th e
essence of human ity.

Universalism is in origin a western conce pt and many people argue th at, literally understood, th e
idea is nonsense because varying sta nda rds and criteria apply in different part s of th e wo rld.
Different beliefs suggest cultural relativism but one of th at creed's obvious and main weakn esses
is that it is often trumpeted by rul ing cliqu es and elites in states where th e major ity of th e
populat ion is pat entl y down-trodden and enjoys few rights. Cultural relat ivism is th erefore
sometimes portrayed by its oppon ents as self-serving. Ano ther way of viewing th is is to argue
th at uni versal right s are objective whilst culturally relative right s are subjective. T he two opposi ng
views are summarised in th e following table:

Universal rights The idea that so-called 'primitive' or 'undeveloped ' cultures will event ually become
'advanced ' and adopt the same laws and human rights as western soc ieties. Universality
stems from the belief that some rights are intrinsic by virtue of one's humanity and should
have no bearing or dependence on cult ural criteria , for example the right not to be enslaved
or tortured cannot depend on relat ivity (where you are and in which society you are located),
but are absolute and available to all.

Cultural relativism The assertion that rights are not universal but differ from one societ y to another according to
their individual cult ures, allowing human rights to be interpreted differentl y throughout the
world. If the right not to be enslaved or tortured is universal and absolute, what about the
right to education? There is little likelihood of universal agreement that every child has a
human right to be educated to an agreed age.

• Figure 1.4 Universality v cultural relativity

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1.5.2 Implications of universalism
Largely because of the Allies' victory in the Second World War, the current version of rights which
predominates globally is universalism. A number of claims are made as to what this means and
how it should operate whether in worldwide UDHR terms, regional contexts such as the ECHR
or the American Convention on Human Rights 1969, or domestic legislation such the HRA.

It is claimed that rights are inalienable, interconnected, interdependent, interrelated, indivisible

and obl igatory rather than aspiratory, which can be represented diagrammatically as in Figure 1.5-

Inalienable means that an individual is not able to give away or sell his rights, nor thos e of
others. Thus, a parent has no right to exploit his child, let alone sell the child into servitude or
slavery, or to misuse other members of his family.

Interconnectivity of rights brings together individual rights such as that of personal security with
the collective need of everyone to live in a healthy and safe environment. Security is not limited
to personal safety but to the general welfare of mankind, present and future.

Interdependence and interrelatedness exist because of the very nature of rights, the idea being
that they all contribute to enhancement and realisation of human dignity and development,
whether a person's needs are physical, psychological, cultural or spiritual. An educated person is
generally more likely to be healthy and for education he needs information, the ability, skills and
means of achieving knowledge, and an environment that allows him to flourish ; all are essential
and intertwined. Once the person achieves healthy and educated maturity, he needs to be able to
work to support himself and his family, with all the other rights that allow him to survive and
prosper.

Indivisibility of rights comes from the idea that whether the right in question is civil or
political, economic, social or cultural, or for that matter a less clearly defined right to (say)
development or a clean environment, they all relate to the inherent dignity of man and cannot
be placed in any order of hierarchy or priority. In this view, it does not mean anything and
indeed it would be wrong to argue that individual political rights are more or less important
than collective social, economic or cultural rights: all should be treated with equal respect and
given equal priority. This causes problems, however, because it tends to assume without
specifically saying so that everyone starts from the same place, which is obviously not the case.

Using the word 'obligation' introduces a different element, one which is often overlooked or not
understood by people claiming 'rights', and there are two points to make here. The first is that
rights do not and cannot exist in isolation from everything else, universal or not, so the existence
of a right implies the likelihood of some corresponding obligation. The second point is that very
few rights granted in legal regimes are unconditional, as will be seen when we examine the ECHR.

Non-discriminatory: apart from the absolute nature of the requirement that there should be no
discrimination, and that torture and slavery can never be tolerated, other rights and freedoms are
qualified to lesser or greater degrees; yet even the definition of torture is linked to inhuman

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Non -discriminatory Inalienable

Universal
Human Rights
Ob ligational Inter-connected
of
Dignity and Respect

Indivisible Inter-dependent

• Figure 1.5 Connectivity of universal rights

treatment, and slavery to certain types of compulsory labour, both of which provide 'wrigg le
room' for those who wish to question the limits. Such an approach is not only damaging but
dangerous; picking and choosing which aspects of human rights or international law to observe
leaves the field free for every rogue regime to do the same .

1.5.3 Basic human goods

Another way of considering rights is to examine what is required to sustain life in a way that
enables freedoms to be enjoyed. In Chapter IV of Natural Law and Natural Rights the Australian
legal philosopher John Finnis identifies what he describes as the basic forms of human goods
which comprise:

• life and its capacity for development

• acquisition of knowledge, as an end in itself
• capacity for recreation
• aesthetic expression
• sociability and friendship
• practical reasonableness
• capacity for intelligent and reasonable thought processes
• religion, or the capacity for spiritual experience.

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Cultural relativists would attack this view of rights on the basis that Finnis provides a subjective
list of what he considers to be the basic forms of human goods . This is alright as far as it goes
bur these are not universal and other people with different backgrounds and purposes could
produce their own lists with, they would claim, equal authority. Even if this is not a valid
objection, the forms of what are in practice acceptable as basic forms of human goods will be
different according to which part of the world one examines. These objections are removed if
one accepts that this is what ought to be the case, even if it is not and is not likely to be.

1.5.4 Generational rights

The idea of generational rights provides a less well-known and very different overview of post
Second World War human rights . Karel Vasak's 1979 theory metaphorically likens human rights
to the French revolutionary slogan, liberte, egalite et ftaternite, translated as first, second and third
generations of human rights development. They are set our in the following table:

Liberto: first generati on

Characterist ic freedoms
• civil and political in nature
• designed to protect citizens from excesses perpetrated by the state
• basically negative in nature, for example Arts 3-21 UDHR and ICCPR
• often expressed as freedoms , for example of speech , religion, assembly.

Egalite : second generation

Characteristic equality
• based on social, economic and cultural factors
• most ly positive requiring the state to make provision
• include employment and family rights , for example Arts 22-27 UDHR and ICESC
• needs institution of programmes to implement them , for example educational, health.

Frat ernite: third generat ion

Characteristic solidarity
• group and co llective rights, for example peace, a healthy environment, ownership of universal commons such
as the seabed
• issues of self-determination
• not represented in earlier and traditional rights agendas and programmes .

• Figure 1.6 Generational rights table

1 First-generat ion righ ts may be described as clear and sharply defined although not
unrestricted: freedom of speech constrained by the right to protection from defamation, or
freedom of assembly whilst not unduly impinging on other people's comfort and privacy.
2 Second-generat ion ri ghts become less concrete and more generalised, such as the collective
right of a given society to be provided with medical care and educational facilities for which
the people as a whole provide the necessary resources, the more able and capable subsidising
the less well-off. This type of right would exist in a successful welfare or socialist state.

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3 Third-generation rights are more global and less easily achieved and some people would
deny that they should be characterised as 'rights' at all. The trend is expansionary from
individual to society to the wider world. With civil and political individual rights states
normally provide hard law to enforce them. For social and economic rights, states sometimes
provide policies that mayor may not be enforceable by or on behalf of individuals.

In the fraternity phase, issues affecting large groups or the whole of mankind emerge, and if law
is involved at all it will usually be soft in character. The essential characteristics of third-
generation rights are the embracing of joint and collective obligations by all states . Those
requirements are wide r than are expected from individual states and extend to international
actors such as INGOs and transnational corporations.

Concretisation
There is a 'concretisation' process taking place in the development of rights moving from
theoretical idealism, whose origins can be identified in the American and French revolutions and
earlier, to the practical implementation of rights regimes after the Second World War. The
UDHR was an attempt to identify a combination of types of right but is only a Declaration and
as such not hard international treaty law, although it has (perhaps) acquired the status of
international custom, as evidence of general practice accepted as law. Therefore, concretisation is
only slow and partial.

An example of practical application of third-generation rights is the 1986 UN Declaration on the

Right to Development together with various documents, charters and treaties providing support
for the emergence of fraternal rights to peace and a healthy environment. It should be
understood that the use of the generational metaphor is not meant to imply that the first and
second generations die and are replaced by the 'grandch ildren' but more a loose family growth
and development.

There is other debate about whether fraternite or solidarity implies either a quantitative or
qualitative shift in the nature of human rights, birth of a generation of entirely new rights , or
extensions of the old . In other words, are the joint responsibilities of developmental rights of a
different nature and dimension to previously recognised traditional and individual rights ? The
question does not lend itself to easy conclusions.

Objections
Opposition to Vasek's theory has been based on differing suppositions:

3 Human rights have to be individual so that they can be enforceable as such by law.
2 Solidarity rights are collective so they either cannot be so enforceable or at best would be
more difficult to enforce because of the practical problems of demonstrating that the right
applies to the claimant (whether this is correct is questionable, as legal systems can and do
countenance class actions or claims by groups of individuals).

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3 Attempting to add these to the currently accepted International Bill of Human Rights would
dilute the efficacy of those fundamental rights and freedoms and damage the progress made
so far.
Despite doubts and opposition, Vasek's theory provides an elegant metaphorical, theoretical
approach and aid to understanding the origins, development, implementation and possible future
trends of international human rights, and is not intended to be a literal application of the
French revolutionary slogan. The metaphor provides a simple way to grasp the existing and
potential scope of post Second World War human rights, whilst acknowledging that not everyone
would agree with extending rights in this way.

A different way of trying to get to grips with the nature rather than the content of human rights
is provided by Marie-Benedict Dernbour's book Who Believes in Human Rights? Details are given
at the end of this chapter. The main proposition is briefly described here as the Dembour analysis.

1.5.5 The Dembour analysis

Marie-Benedict Dembour does not believe that human rights exist outside of social recognition, by
which she means that they only exist to the extent that they are talked about. This sceptical attitude is
understandable on the basis that to assert that rights are universal is one thing, but it is more realistic
to argue that rights ought to be universal although in the real world they are not . This is/ought
discussion is also well known outside rights discourse. From an empirical sceptical viewpoint and
using as her subject matter European Convention cases, she identifies four main concepts of human
rights which , in summary, she classifies as given, agreed, fought for or talked about.

1 Given rights
This represents the approach of natural law scholars who believe that human rights comprise
'minimal entitlements originating from an immanent source'. The philosopher Emmanuel Kant
can be associated with this group and the origins of their beliefs lie from early times in Nature,
later gods or God, and more recently in Reason and Humanity. Although that is taken to be
where rights originate they can be provided by positive law, ie man-made law imposed by rulers
on societies and if they are to be effective, enforced by sanctions. Therefore, since the Second
World War, rights developments have been 'progress'.

2 Agreed rights
'Deliberative scholars' take this view of rights. The idea is that there must be agreement as to how
the rules of the political game are to be formulated and implemented, ie how they operate as
procedural principles reflecting a consensus within a given society, as in the writings of Habermas.

3 Fought for rights

Scholars taking this approach are fewer in number and may be characterised as 'protesters'. The
need for rights persuades them that people must fight for what they believe in so as to establish

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rights. They cannot simply hope that right reason will prevail and a world of dignity and respect
by and towards human beings will emerge. They take a Levinasian view (after the Lithuanian
Jewish-French philosopher Emanuelis Levinas) which means responding to unacceptable
conditions when they occur.

4 Talked about
This refers to a small number of 'discourse scholars' and is Dernbour's own stance. The belief
here is that human rights 'have no essential immanence but exist only because they are talked
about' . They are neither good nor bad but have to be judged by what they are stated to be at
particular times and in particular places, assessed against whatever outcomes are achieved. The
influence here is post-modernism.

Talked about Given

Post- modern Natural

Dembour Kant

Nature
of rights

Fought for Agreed

Protesters Deliberative

Levinas Habermas

• Figure 1.7 Dembour categories

These sections of Chapter 1 can only provide a precis of some approaches to rights theory, and
there are other methods of classification. However, the theories discussed will repay some thought
and help in achieving individual insight and reaching conclusions as to what is meant by 'human
rights '.

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A( IIVTTY DDD
Self-assessment questions
1 Why does the EU have its own Charter of Fundamental Rights rather than simply
adopting the ECHR?
2 Explain the differences between universalism and cultural relativism in the context
of human rights.
3 What is meant by 'connectivity' of human rights?
4 Identify what Finnis means when he writes about basic forms of human goods : are
they definitive?
5 Explain Vasek's three generations of human rights with examples of each.
6 What are the categories of Dernbour's analysis and what theoretical approach to
human rights underlies each?

1.6 UK rights today

Renew ed interest in human rights was established in the UK when the opposition Labour Party
undertook during the 1997 election campaign to 'bring rights home', by which they meant
allowing UK subjects to claim rights under the ECHR through UK domestic law. Previously,
although the UK was a signatory to the European Convention from the start, the benefits had
not generally been accessible to individuals, perhaps because successive governments believed that
long-established protections such as jury trial, habeas corpus and judicial review were adequate.
Nevertheless, after a campaign lasting several decades, those who believed that such protection
needed strengthening prevailed, and after the 1997 election the Human Rights Bill 1998 was
brought forward and enacted; it is dealt with in detail in Chapter 3.

This chapter has shown that human rights find their origins in history, their development
through various theories, processes and events, and their concrete existence now at local,
national, continental regional and global levels. They have grown from notions of individual
freedoms such as thought, speech, assembly and religion through claims to collective social and
economic rights of health, education, employment and so on to , some would say, universal rights
(or claims) to a safe and healthy environment, free from war, poverty and cruelty.

This book goes on to deal with the body of hard law comprising conventional rights and
freedoms arising from the European Convention and Human Rights Act, and also a number of
other important aspects of human rights that are essential to understanding rights in the modern
world.

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1.7 Acronyms and glossary

Rights books tend to make frequent reference to acronyms and some of the more common ones
are set ou t in the following alphabetical table.

CEDAW Conventio n on the Elimination of all forms of Discrimination against Women

ECHR European Convention of Human Rights

ECOSOC (UN) Econom ic and Social Council

EIDHR (EU) European Initiative for Human Rights and Democracy

ICC International Criminal Court

ICCPR International Covenant on Civil and Political Rights

ICESCR International Covenant on Economi c, Social and Cultural Rights

ICJ International Court of Justic e

ICRC International Committee of t he Red Cross

ILO International Labour Organisation

INGO International Non-Governmental Organisation

NGO Non-Governmental Organisation

UDHR Universal Declaration of Human Rights

UN United Nations

UNHCHR United Nations High Commissioner for Human Rights

UNHCR United Nations High Commissioner for Refugees

• Figure 1.8 Tab le of acronyms

References are also made to vario us wo rds, ph rases, or descriptions th e meaning of whic h may
no t be obvious at first sight, so a glossary of some of these is set out below.

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Civil and political rights First-generation citizens' individual rights to liberty, civil rights and freedoms

Collective rights The claim of native aboriginal groups to have their rights as a whole preserved, as opposed
to individual rights such as to be given a fair hearing.

Convention A legally binding agreement between states, entered into voluntarily and enforceable only to
the extent acknowledged by signatories, and used more or less interchangeably with the
words 'covenant' and 'treaty' (Note that it has an entirely different meaning to a
'const itutionai convention ', which is an unwritten rule followed within UK government in the
absence of a clear written constitution) .
Covenant See Convention

Customary international law This is one of the sources of international law.

Declaration A set of non-legally binding standards to be observed by states. It can also mean an
interpretive statement by a state entering into a treaty obligation setting out its
understanding of what a particu lar provision means.
Denunciation Some but not all treaties allow a state to denounce individual petition rights.

Derogation Withdrawal by a state from particular rights obligations in times of armed conflict or public
emergency, threatening the life of the nation

Economic, social and Second-generation rights giving people rights to the material necessities of life rather than
cultural rights to individual freedoms

Environmental and Third-ge neration rights of mankind to enjoy a safe and healthy environment, and for
development rights peoples generally to live in harmony

Hard law Commitments between states that are regarded as valid under international law and so are
binding on those who enter into them

INGO (see NGO) International NGO

International Bill of Rights The comb ined tota lity of the UDHR, ICESCR, ICCPR and its optional protoco l

Margin of appreciation The amount of discretion given to individual states to take account of their own social and
cultural conditions when applying international human rights, especially with reference to
the ECHR
NGO (see INGO) An institution created outside of any intergovernmental agreement, bringing together private
or public legal bodies or natural or legal persons of different nationalities, on a volunteer
basis, and not operating for profit

Non-derogable rights Rights from which states are not allowed to derogate, usually taken to include the right to
life, prohibition of torture and slavery, freedom of thought , conscience and religion, and
prohibition of retroactive penal legislation

Protocol An addendum to a treaty which modifies it, often used to incorporate optional provisions
not acceptable to all states parties

Ratification Confirmation by a state's legislative machinery of intended adherence to a convention or

treaty

Reservations Legally binding statements of limitation made by states entering into treaty obligations so
that specified provisions of the treaty do not have to apply to that state

Soft law These are comm itments made between states that they do not regard as binding and
which are unenforceable under international law, and so they can be ignored with impunity .

State A territorial area occupied by a society that possesses the same government and under the
same laws: states are mostly synonymous with countries although not exactly the same

Treaty See Convention

• Figure 1.9 Glossary of words and phrases

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1.8 Summary
T his first chapter has introduced a wide range of subject matter abo ut th e origins and nature of
human rights, th e lan guage used and th e techniqu es necessary for successful study. T he re are
various activities which will repay some attention before mov ing on to th e close study of the
Euro pean Conventio n and Human Rights Act.

In particular, th e advice given abo ut how to tackle different types of assessment is imp ortant
because too many students disregard th e actual requ ireme nts and convert th e qu estion to 'Write
everything you kn ow abo ut X'. It sho uld be needless to say, but th is does not ensure success.

KEY FACTS
Expl Explanation

Universalism Post Second World War human rights almost entirely pre-suppose
that human rights are universal, without too closely defining what
that means, and denying that they are culturally relative.

Rights and law The ECHR and HRA are hard law, enforceable through the courts,
but there are many other claims to rights which are soft law and
not easily or directly enforceable through any legal system.

Democratic Respect for human rights mostly presupposes the existence of

institutions democratic systems which respect the rule of law, rules of natural
just ice, and rights of people to elect and remove their rulers.

Variety of Claims vary but include rights, freedoms and prohibitions, and in
rights nearly all instances are qualified in some way and need to be
balanced against other people 's needs.

Council of The Council of Europe is the most successful existing human rights
Europe organisation in terms of establishing enforceable rights machinery,
respons ible for the ECHR and European Court of Human Rights.

United Nations The UN is wid ely regard ed as not having been really successful in
promulgating human rights in a world wh ich regards realpolitik as
more important but nevertheless the UN plays an important role.

CONTINUED ~

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KEY FACTS
Act 1998 The European Convention is the main focus of the rest of this book
and requi res detailed study of the Court and its case law.

Human Rights Knowledge of the Act and domestic case law is essential for
Act 1998 modern implementation of human rights in the UK.

Useful resources
Department of Constitutional Affairs: [Link]
Mora les, Dr M C P, 'UNESCO's Philosophy of "int ellectual and moral solidarity" in atta ining peace':
[Link] [Link].
Think Q uest Project: [Link] [Link]/CO126065/[Link].
The National Archive: htt p://[Link]/humanrights/.
Council of Europe : [Link] .
Stanford Encyclopaedia ofPhilosophy: htt p://[Link]/ent ries/rights/#2.2.

Further reading
Dembour, M-B, Who Believes in Human Rights? Reflections on the European Convention (Cambridge
University Press, Law in Context Series, 2006) .
Finn is, ], Natural Law and Natural Rights (Oxford University Press, Clarendo n Law Series, 1980).
Halstead, P, Human Rights Key Facts (2nd edn, Hodder Arno ld, London, 2008) .
Smit h, R K M, Textbook on Internationa l Human Rights (3rd edn, Oxford University Press, 2007).
Toggenburg, G N, 'The Role of the New EU Fundamental Rights Agency: Debating the "Sex of Angels"
or Improving Europe's H uman Rights Performance?' EL Rev 2008 , 33(3) , 385-398.
We llman , C, 'Solidarity, the Individual and H uman Rights', Human Rights Quarterly, August 2000 , 22(3),
639-657.