LAW139 Public Law: 


Human Rights and Public Law

Dr Joe Atkinso
March 2021
n

Human rights and public law: overview

1. Introducing human rights and public law

2. Domestic protection of human rights and the

Human Rights Act 1998.

3. The Human Rights Act 1998 and the ECHR.

Next week we look in more detail at human rights review of

administrative acts and legislation under the HRA, and
consider some current hot topics relating to human rights
in the UK.
Introducing Human Rights and Public Law
Introducing human rights and public law

➢ The idea of human rights and the role of human

rights in public law.

➢ The European Convention of Human Rights and the

European Court of Human Rights.
 The Idea of Human Rights
The term ‘human rights’ may be relatively recent, but the
underlying idea is not.

Developed from ideas of ‘natural rights’ (Grotious, Rousseau,

and Locke)

Historical precursors to modern day human rights

documents
• Magna Carta (1215) and English Bill of Rights (1689)
• French Declaration on the Rights of Man (1789)
• US Constitution and Bill of Rights (1791)
:

 International Human Rights Law

Modern understandings of human rights generally center on
IHRL, which emerged in reaction to 20th Century atrocities:
• Universal Declaration of Human Rights (1948)
• European Convention on Human Rights (1950)
• International Covenants (ICESCR / ICCPR, 1966)
• European Social Charter (1961)
• Inter-American Convention on Human Rights (1969)
• African Charter on Human and Peoples' Rights (1981)
• EU Charter of Fundamental Rights (2000)

There is division in most IHRL documents between ‘civil and

political’ rights and ‘social’ rights.
 Human Rights and Public Law
Universal rights held by individuals against the state, who
have duties to respect and protect these rights

Have vital role as a ‘shield’ against the power of the state.

But sometimes also as a ‘sword’ that require positive steps to

protect rights

Human rights provide a normative and legal benchmark

against which to assess administrative acts and legislation.
.

 Human Rights and Public Law

There are many difficult questions surrounding the role of
human rights in public law. Including
- What should be included/protected as a human right?
- Which human rights should be legally protected in
domestic constitutions and public law frameworks?
- Who should have responsibility for translating these
highly abstract rights into concrete rules and
decisions?
- Should courts be able to use human rights to control
or limit the actions of elected Governments?
:

The ECHR and ECtHR

European Convention of Human Rights

Graphic source: AIRE Centre.

The European Court of Human Rights
 The UK at the ECtHR

Source: MoJ, ‘Responding to Human Rights judgments: 2019-2020’, (December 2020) CP 347.
 European Convention of Human Rights
The rights contained in the ECHR are mostly civil and political rights
• Article 1: Obligation to respect Convention rights
• Article 2: Right to life
• Article 3: Freedom from torture and inhuman or degrading
treatment
• Article 4: Freedom from slavery and forced labour
• Article 5: Right to liberty and security
• Article 6: Right to a fair trial
• Article 7: No punishment without law
• Article 8: Respect for private and family life, home and
correspondence
• Article 9: Freedom of thought, belief and religion

 European Convention of Human Rights

Contents of the ECHR (continued)
• Article 10: Freedom of expression
• Article 11: Freedom of assembly and association
• Article 12: Right to marry and start a family
• Article 14: Right to freedom from discrimination in enjoyment of
Convention rights.
• Protocol 1 to the ECHR, Article 1: Peaceful enjoyment of property
• Protocol 1 to the ECHR, Article 2: Right to education
• Protocol 1 to the ECHR, Article 3: Right to participate in free
elections
• Protocol 13 to the ECHR, Article 1: Abolition of the death penalty
:

 Convention Rights: Absolute Rights

Art.3, Prohibition of torture
No one shall be subjected to torture or to inhuman or degrading
treatment or punishment.

Art.4, Prohibition of slavery and forced labour

(1) No one shall be held in slavery or servitude.
(2) No one shall be required to perform forced or compulsory labour.
(3) For the purpose of this Article the term “forced or compulsory
labour” shall not include… [work in detention/military service /
emergency / normal civic obligations]
:

 Convention Rights: Qualified Rights

Article 8, Right to respect for private and family lif

(1) Everyone has the right to respect for his private and family life,
his home and his correspondence.

(2) There shall be no interference by a public authority with the

exercise of this right except such as is in accordance with the law
and is necessary in a democratic society in the interests of
national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and freedoms of
others

Applying the ECHR: Justifying Interferences

Alleged infringements of qualified rights may be justified if the
interference is “in accordance with the law” and “necessary
in a democratic society” to achieve a listed aim.

Interferences will only be necessary in a democratic society if

they are proportionate. The proportionality test requires an
interference be
1. Rationally connected to the legitimate aim pursued.
2. No more than necessary to achieve this aim.
3. The interferences/burden placed on individual must
not be disproportionate to the benefit.
:

Applying the ECHR: Margin of Appreciation

The ECHR gives domestic authorities a “margin of appreciation”

This reflects the principle of subsidiarity; domestic authorities are

better placed to make assessments relating to human rights

Factors that impact the margin of appreciation

• Detailed consideration by the domestic authorities
• Domestic and European consensus (or lack of)
• Decisions related to social or economic policy
• The extent of the restriction on the right
:

 ***Reflection Questions**
Are there are any rights you were surprised to find in
the ECHR, or any you think should be included

Is there a problem with judges using the principle of

proportionality to identify human rights violations

How far should the ECtHR defer to the views of

member states on human rights questions?
*

Domestic Protection of Human

Rights
Domestic Protection of Human Rights

➢ Domestic human rights protection pre-1998

➢ Introducing the Human Rights Act 1998

 Domestic Human Rights Pre-HRA
Before the Human Rights Act 1998, constitutional protection
of human rights was largely based on the idea of ‘negative
liberties’

‘Basic constitutional rights in this country such as

freedom of the person and freedom of speech are based
not on any express provision conferring such a right but
on freedom of an individual to do what he will save to the
extent that he is prevented from so doing by the law.’
~ Wilkinson LJ, Wheeler v Leicester City Council [1985] AC 1054, 1065
:

 Domestic Human Rights Pre-HRA

But it is wrong to think that there were no protections of
human rights before the HRA was introduced

1. A wide range of protections of civil and political

rights and social rights existed in both the common
law and enacted legislation.
2. Some public law protections of human rights were
provided by the law of judicial review.
3. Courts interpret statutes on the basis that Parliament
intends to legislate in line with fundamental common
law rights and international law. :

The Human Rights Act 1998

The HRA: ‘Bringing Rights Home’
The Human Rights Act 1998: Overview
Overview of the HRA:
s.1: incorporates Convention rights (listed in Schedule
1)
s.2: duty to take account of ECtHR
s. 3: interpretive duty
s. 4: power to declare incompatible
s. 6: public authorities bound by human rights
s. 10: power to take remedial action
s. 19: Ministerial statements of compatibility
 The Human Rights Act
Evidence of shift from political towards legal
constitutionalism.

But attempts to reconcile this with Parliamentary

Sovereignty.

Important issues
1) The relationship between the HRA and ECHR (s.2).
2) Human rights review of public authorities (ss.6-8).
3) Human rights review of legislation (ss.3-4).

 ***STOP….HRA TIME.***
Before continuing, please stop and read the HRA
1998.

Take a few minutes to reflect on the different types of

mechanism used in the Act to protect human rights.

The Human Rights Act and the

ECHR
 The HRA and ECHR

➢ The HRA’s incorporation of the ECHR

➢ Interpreting s.2 HRA

➢ Reflecting on the HRA-ECHR relationship

Relationship between HRA and ECHR
Relationship between HRA and ECHR
 Relationship between HRA and ECHR

Section 2 requires that ECtHR jurisprudence and

interpretation of rights be ‘taken into account’ when domestic
courts are deciding questions about Convention rights.

This includes when deciding if acts of public authorities have

breached Convention rights, and if legislation is compatible
with the ECHR

But what does it actually mean for the courts to take the view
of ECtHR into account?
.

 HRA s.2 and the ‘mirror principle’

“In the absence of some special circumstances it seems to
me that the court should follow any clear and constant
jurisprudence of the European Court of Human Rights.
Lord Slynn, R (Alconbury) v SoS Environment [2001] UKHL
2

“The duty of national courts is to keep pace with the

Strasbourg jurisprudence as it evolves over time: no
more, but certainly no less.
~ Lord Bingham, R (Ullah) v Special Adjudicator [2004]
UKHL 26
3

 Rationale for the ‘mirror principle’

“The [Human Rights] Act was intended to provide a remedy

where a remedy would have been available in Strasbourg.
Conversely, the Act was not intended to provide a domestic
remedy where a remedy would not have been available in
Strasbourg.
~ Lord Nicholl
R v SoS for Foreign and Commonwealth Affairs ex p Quark [2005] UKHL
57
s

 Cracks in the mirror

“This Court is not bound to follow every decision of the European

court. Not only would it be impractical to do so: it would sometimes
be inappropriate, as it would destroy the ability of the court to engage in
the constructive dialogue with the European court which is of value to the
development of Convention law (see eg R v Horncastle). Of course, we
should usually follow a clear and constant line of decisions by the
European court: R (Ullah) v Special Adjudicator. But we are not actually
bound to do so or (in theory, at least) to follow a decision of the Grand
Chamber
~ Lord Neuberger, Manchester City Council v Pinnock [2010] UKSC 4
~
”

 Cracks in the mirro?

“ Where, however, there is a clear and constant line of decisions

whose effect is not inconsistent with some fundamental substantive
or procedural aspect of our law, and whose reasoning does not
appear to overlook or misunderstand some argument or point of
principle, we consider that it would be wrong for this Court not to follow
that line.
~ Lord Neuberger, Manchester City Council v Pinnock [2010] UKSC 4
~
”

 The status of the mirror principle

Some cases have illustrated willingness to diverge
from ECtHR position

- R v Horncastle [2009] UKSC 1

- R (Kaiyam) v Secretary of State for Justice
[2014] UKSC 6
- R (Hallam) v SoS for Justice [2019] UKSC
- M (Zimbabwe) v SoS for the Home Department
[2020] UKSC 17
6

 *** Reflection Questions***

One criticism of the HRA is the (over)reliance on the
ECtHR’s interpretation of rights, rather than facilitating the
development of a distinctively British approach. Do you think
this is valid

Another understanding of the HRA-ECHR relationship is that

the Act creates a dialogue the ECtHR and UK courts. To
what extent does the HRA establish a dialogue on human
rights between domestic courts and the ECtHR?
?