LAW 1021

Constitutional Law in Context

18/10/2019

Human Rights
What are ‘Rights’?
Can be thought of as lawful entitlements that can be enforced by one person (the right-holder) against
another (the duty-bearer), usually in a court of law.
E.g.: constitutional rights – rights set out in the constitutional parameters of a given country; civil and
political rights – e.g. rights to fair trial, freedom of speech, an election, etc.; economic, social and
cultural rights – broader – right to a an honourable standard of living, a house, education, medicine;
employment rights; contractual rights, etc.

What are ‘Human Rights’?

Simply, ‘the rights that we have simply because we’re human.’
Office of the United Nations High Commissioner for Human Rights: “Human rights are rights
inherent to all human beings whatever our nationality, place of residence, sex, national or ethnic
origin, colour, religion, language, or any other status. We are all equally entitled to our human rights
without discrimination. These rights are all interrelated, interdependent and indivisible.”
Stems from natural law theory; holds that human rights exist as a fact of nature – not something that
human beings have created. Humans have them by virtue of their existence, like laws of nature,
mathematics, physics, etc. – they’re universal.
Governments are there to enforce and protect human rights, and there’s a debate as to whether
companies also are obligated to do so as well.

International Rights – United Nations

History of Human Rights…
Different theories:

 Some believe that they originated in the days of Socrates a

 Others think it originated during the Age of Enlightenment and point out things like the Bill
of Rights 1689, The Rights of Man by Thomas Pain, written in the 18 th century, the French
Revolution which led a foundation very much so in a European context for what human rights
are, others would argue it’s the slave trade that we were able to build human rights laws upon
 For our purposes, human rights as we know it today emerged after WWII – after the war was
over, the Allied Nations came together and agreed that governments should never be allowed
to come together and commit the kinds of crimes that Nazis did, and for that reason the
United Nations was formed and one of the first things it did was draft the Universal
Declaration of Human Rights. There was always some form of international law, but it was
only really after the second world war the corpus of international law was what we know
today
 Universal Declaration of Human Rights is not legally binding, so couldn’t be enforced,
weren’t binding under signatures. Rights are things that you’re entitled to that can be legally
enforced, so that undermined the UDHR.
Growth of International Human Rights Law:

 1948 – second world war had just ended, and Cold War was still going on. A range of other
UN human rights treaties have been put in place, which are binding on their signatures:
o
o International Covenant on Civil and Political Rights (1966)
o International Covenant on Economic, Social and Cultural Rights
 Together with the UDHR, these Treaties are now referred to as the International Bill of
Human Rights

UN Human Rights System:

 Leadership: Office of High Commission for Human Rights
 Charter-based bodies/procedures (established under UN charter – not treaties): Human
Rights Council, Universal Periodic Review (governments have to submit reports to the
UN outline how they’ve complied with human rights within a given year for example),
special procedures
 Treaty-based Bodies:
o Oversight body – always some form of committee for example that oversees
compliance with a particular treaty over a period of time, e.g. Committee on
Economic, Social and Cultural Rights and Human Rights Committee. There’s a
committee for each treaty under the UN.

REGIONAL – European Convention on Human Rights

Supranational – a form of law or a kind of organisation that exists independently of states and exists
above them, situations where governments have basically yielded some of their sovereignty to an
organisation that’s above them
International – law that’s made between states – doesn’t exist above them. Treaties for example,
exist between governments and regulates the way in which they interact with each other and their
citizens
Regional – e.g. European law, or laws made between North America and South America. It’s law that
applies to a particular region
AMERICAS:

 American Convention on Human Rights.

 Inter-American Commission on Human Rights.
 Inter-American Court of Human Rights.
AFRICA:

 African Charter on Human and Peoples’ Rights.

 African Commission on Human and Peoples’ Rights.
 African Court of Human Rights.
EUROPE:

 European Convention on Human Rights.

 Council of Europe.
European Court of Human Rights (ECtHR). Regional human rights law most often reflects
international human rights standards, but its more tailored to the specific requirements and minutiae
of different regions. So in the Americas, you have the American Convention of Human Rights which
applies between the north and south, and different institutions
Africa is another major region – African Charter on Human Rights, African Court of Human Rights
Europe – European Convention on Human Rights
NOTE:
The Council of the Europe and the European Council are two different bodies.
The Council of Europe is NOT PART OF THE EUROPEAN UNION – it’s an international
organisation, even though it’s a regional institution because it refers to law between states. Concerned
with adjudicating
The European Council is a supranational organisation and one of the EU institutions. Comprises the
heads of state of EU Member States.
European Court of Justice – oversees European law (not human rights law) sits in Luxembourg.
European Court of Human Rights – sits in Strasbourg.
An international human rights treaty between 47 states that are members of the Council of Europe
Drafted in 1949, the Convention entered into force in September 1953
Only gives rights to citizens within the territory of a given country.
Do human rights extend beyond the boarders of a given country?
Additional protocols

Main Articles:
Very much reflect the ICCPR, reflect western ideas and principles in human rights. Aren’t many
economic human rights here, for example, and that’s because the west is mainly capitalist.
UK was the very first country to ratify the convention in 1951.

National – United Kingdom

Dualism v Monism:

 Countries have to pass legislation to incorporate a treaty into domestic law depending on the
constitution, some don’t need to pass legislation in order to give effect to a treaty (USA,
France)
 Monist countries are
 Dualist countries are where legislation is required in order to give effect, require ratification
of the treaty by the head of state and incorporation through legislature. Treaty won’t become
effective until it has been incorporated into national law, like the UK
1951 – 1998
Life Before the Human Rights Act 1998
UK Courts were unable to enforce Convention rights domestically
Litigants had to travel to Strasbourg to the European Court of Human Rights to have their rights
recognised and acted upon. Involved a lot of delay and costs for the individual
A tradition of civil liberties in the UK – residual protections (Dicey: said the rule of law prohibited
punishment not based on law and sentenced by courts, same law applies to everyone equally, the rule
of law protected civil rights)
Statute law – Parliament giving rights to certain things that happen as far as when you’re arrested,
how long you can be arrested for without reason for holding you, etc.
R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51

 People were worried about what would happen to the supremacy of Parliament as the EC
comes from a foreign course, and in order for rights to be effective, they would be effective
against the government. Fear that EC would limit the powers of Parliament and effectively
remove parliamentary sovereignty
 PART II: Human Rights and the UK
Constitution
The Human Rights Act 1998 attempts to strike a constitutional balance – respect for human rights as
well as parliamentary supremacy. Many think that the HRA undermines parliamentary sovereignty in
preserving constitutional balance.

Note what can and cannot be done under the Act:

Sources of UK Constitution:

 Acts of Parliament
 Common law
 Conventions
 Role of prerogative

Main concept is parliamentary sovereignty – they can pass any piece of legislation they wish to at
any given time. Always been a relationship between statute law and common law in the UK, statute
law takes precedence over case law. Devolution arrangements have also changed the constitution,
as have supranational, international and regional laws.

There’s nothing to stop Parliament from amending the constitution in such a way to do away with
the Human Rights Act 1998, in theory.

In order to have truly effective (human) rights, they need to be firmly protected against being easily
amended and done away with. They need to be immune, but the question is whether that can be
achieved in a UK context given the doctrine of parliamentary supremacy.

Human Rights Act 1998

Long title: ‘An Act to give further effect to rights and freedoms guaranteed under the European
Convention on Human Rights …’

Doesn’t actually create any rights – only brings in the rights that are already there under the
European framework.

Convention Rights (Section 1, Schedule 1):

When referring to the rights themselves, you refer to the Articles of the convention as opposed to
actually quoting the right. E.g. instead of quoting the right to life, you’d quote the actual Article that
states the right.

 Articles 2-12 and 14 of the Convention

 Articles 1-3

Provisions of the Human Right Act:

 Judicial interpretation of convention rights (section 2) – “a court or tribunal must take into
account European Court of Human Rights jurispudence. So domestic courts have to refer to
relevant caselaw from the ECtHR.”
 Interpretation of domestic legislation (section 3) – “so far as its possible to do so, primary
legislation and subordinate legislation must be read in giving effect in a way which is
compatible with convention rights”. Courts are under obligation to interpret domestic
 legislation in a way that complies with European Convention and ECtHR jurisprudence as far
as possible
 Incompatibility of legislation (sections 4, 10 and schedule 2) – sometimes parliament will
legislate something that clearly goes against the grain of the EC, and the courts can issue a
declaration of incompatibility. If the domestic UK courts find that a piece of legislation
passed by parliament contradicts the ECHR, they can strike down the legislation in that the
piece of legislation breaches the ECHR. Flows from the fact that parliament is still sovereign.
Courts can strike down secondary legislation.
 “A declaration of incompatibility does not affect the validity…” I.e.
 HRA section 6: “It’s unlawful for a public authority to act in a way that is incompatible with
the ECHR unless it could not have acted differently.” Gives people the right to launch judicial
review proceedings against public authority bodies in order to enforce their rights.
 Section 19 – “a minister of the crime in charge of the bill in either house of parliament, must
before second reading of the bill make a statement to the fact that in his view, the bill is
compatible with …” government ministers are obligated to certify whether new piece of
legislation is compliant or not. Some argue that this encumbers and puts some fetters on
parliament’s power, imposes some kind of requirement and infringes the principles of
parliamentary sovereignty

Examples from Case Law:

Ghaidan v Godin-Mendoza [2004] UKHL 30:

 HRA has been in place for 4 years at the time of this case
o Facts:
 Rent Act 1977, concerning same-sex couple (passed before legalisation of
same-sex couple) who wanted to have their rights recognised in terms of
their tenancy agreement. Court of Appeal decided to read the legislation in a
way that was compatible with the EC, sticking to its interpretive obligation in
a compliant way. That was appealed to the HoL
o Issue:
 The 1977 could or should be interpreted in a way that was compatible with
EC – it was discriminatory
o Decision:
 HoL affirmed decision of CA – no need to issue a declaration of
incompatibility here. The legislation was read and interpreted ina way that
was different to how it was intended
o Reasons:


R (Kiarie and Byndloss) v Secretary of State for the Home Department [2017] UKSC 42:

Facts:

 Two individuals who committed very serious drugs offences and were ordered to be
deported back to their countries of origin

Issue:

 Are human rights breached if a person is deported before they can make an appeal?
Decision:

 CA held that this didn’t breach human rights; Supreme Court argued that it did.

Reasons:

 Parliament had provided that right to appeal, under article 8 (right to private family life), the
appeal needed to be effective, and that outweighed the government’s will, which was to
deport the appellants

Devolution and Convention Rights:

Under devolution statutes, NI, Scotland and Wales; these statutes define the legislative competence
of devolved . Can only do what they’re permitted to do under the devolution legislation.

The Bill of Rights Debates:

Belfast/Good Friday Agreement

Northern Ireland Act 1998 put the agreement on a legislative footing. Passed in the same year as the
Human Rights Act 1998.

- Joint Declaration 2003

- St Andrews Agreement 2006
- Stormont House Agreement 2014
- ‘A Fresh Start November’ 2015

Northern Ireland Assembly fell apart – didn’t respect the rights of minorities (particularly the LGBT+
community). Sectarian views.

Always been a debate as to how to protect human rights in the UK…

Coalition government and agreement:

Liberal-democrats are fierce advocates for human rights laws. Conservatives wanted the
HRA appealed, lib-dems wanted it retained, established creation of British Bill of Rights – you
wouldn’t need a UK Bill of Rights if the European one was sufficient.

Bill of Rights Commission:

Majority view was that

Could give even greater protection in terms of human rights