Intro to human rights

Question 1

Positive Rights

Answer 1

Require state or others to provide goods/services

Not just freedom from interference, but support for action

Law must affirmatively permit and support these rights

Question 2

History of International Human Rights Protection

Answer 2

Evolved through global events (e.g., WWII)

Key milestones: UN Charter, UDHR (1948), regional systems

Built on Western and global influences

Question 3

Traditional UK Approach to Rights

Answer 3

Presumption of liberty: freedoms unless restricted by law

Protected by common law and some statutes

Parliament = sovereign, can override rights

Treaties (e.g., ECHR) not binding unless enacted by Parliament

Question 4

England: Common Law Rights – Entick v Carrington (1765)

Answer 4

State officers searched home without lawful authority

Court: “Every invasion of private property… is a trespass”

Law must justify actions — not just custom or practice

Question 5

Scotland: Common Law Rights – Bell v Black (1865)

Answer 5

Search of home under vague warrant = unlawful

Court: “No official practice justifies such a warrant”

Must be supported by Act of Parliament or recognised common law

Question 6

Role of Statute in Rights

Answer 6

Can protect OR restrict freedoms
Examples:
Criminal Procedure (Scotland) Act 1975
Sex Discrimination Act 1975
Public Order Act 1986

Question 7

ECHR Pre-HRA: English Approach

Answer 7

Used ECHR to interpret statutes (presumption of conformity)

Key cases:

ex parte Phansopkar [1976]

ex parte Brind [1991]

Question 8

ECHR Pre-HRA: Scottish Approach

Answer 8

Courts: ECHR not part of domestic law unless enacted

Kaur v Lord Advocate (1981): “No effect unless in statute”

Changed in T, Petitioner (1997): allowed presumption of conformity

Question 9

Rights Protection Before HRA/SA – Statutory Interpretation

Answer 9

ECHR used to interpret statutes, not enforce rights directly

Examples:

ex parte Brind (1991)

T, Petitioner (1997)

Question 10

Common Law Rights Pre-HRA

Answer 10

Viewed as liberties, not entitlements

Could be removed only by express words

Case: ex parte Simms (2000)

Enhanced review in judicial cases

Case: ex parte Bugdaycay (1987)

Question 11

Rights Pre-HRA – Summary

Answer 11

Common Law:

Liberties = default unless law says otherwise

Strong judicial protection (Simms, Bugdaycay)

Statute:
Parliament sovereign: can grant or remove rights

ECHR:
Used for interpretation in UK courts
Enforceable at ECtHR after domestic remedies exhausted