Mina - HR Flashcards
(26 cards)
What do all individuals have as humans?
rights
by virtue of being human
Can states choose to join hr treaties?
Yes, they don’t have to
due to the principle of state sovereignty
When do international treaties have binding effect?
When they are incorporated by legislation into domestic law
applies in UK
What are all UN members bound by?
bound by principles of the UN charter
include the promotion of human rights
Which wrongs are prohibited under international law?
e.g. torture and genocide are prohibited under international treaties and customary international law (jus cogens)
regardless of a state’s consent and practices
What is jus cogens
fundamental rules of international law that are universally accepted and cannot be violated by treaties or state practices
What are the 3 generations of human rights?
- civil and political
- social, economic and cultural
- group and minority
What are civil & political rights usually justiciable under?
examples of these rights?
domestic law through legislation or ‘rights charters’ such as the HRA 1998
- freedom of assembly / religion / speech
A (FC) and others (FC) v Secretary of State for the Home Department [2005]
- This case concerned whether detention without trial of suspected terrorists under an Anti-Terrorism Act 2001 was compatible with ECHR
- Challenge under Article 5 (Right to liberty and security) and Article 14 (Prohibition of discrimination)
- HOL held it was incompatible and issued a declaration of incompatibility under s.4 HRA 1998, this act was later impliedly repealed in 2005
What does Locke say about rights?
- about civil and political rights
- originate from the notion of natural rights
What do Bentham & Mill say about rights?
- a utilitarianism approach required
- role of legislation is to protect rights & liberties of individuals
- sceptics of natural rights argument
How does Bentham respond to Locke’s idea?
- called natural rights “nonsense upon stilts”
Rawls and Dworken’s argument?
- post 1945 liberal thinkers
- argue that the courts are better able to protect rights than legislation
Brown v Board of Education of Topeka [1954]
- US CASE
- the U.S. Supreme Court ruled that racial segregation in public schools was unconstitutional, effectively overturning the “separate but equal” doctrine established in Plessy v. Ferguson
- But shows how court pushes back against legislation to protect rights
How were civil liberties understood in UK?
What does Dicey’s tradition think about this?
- residual
- citizens seen to be at liberty to do whatever they want as long as it is not expressly forbidden by statute
- this is good -> citizens have remedies for infringement of rights
What has modern common law created?
a body of fundamental common law constitutional rights protected by the principle of legality (constitutional so higher status than ordinary law]
Entick v Carrington [1765]
- SoS searching homes without consent- held to be breach of HR
- Lord Camden: “If it is law, it will be found in our books. If it is not to be found there, it is not law.”
Malone v MPC [1979]
- Police phone tapping vs right to privacy
- Held not to be illegal as there was no statute saying it was illegal and right to privacy not yet recognised by English law
- But Malone later won in 1984 in ECtHR due to breach of Article 8 rights
Derbyshire CC v Times [1993]
- Public authority suing Newspaper for defamation
- Held you cannot due to free speech
- Organs of government do not have a common law action in libel
R v Home Secretary, ex parte Leech (No.2) [1994]
- did prison rules allowing censorship of prisoners’ legal correspondence violated the common law right of access to justice and legal advice?
- Held this blanket power was unlawful due to fundamental common law right of access to justice
- Steyn LJ: “Access to justice is a fundamental common law right, which cannot be overridden by general or ambiguous words in subordinate legislation.”
R v Home Secretary, ex parte Simms [2000]
- Home Secretary placed a blanket ban on prisoners giving interviews to journalists
- appellants argued that this infringed on their right to free speech in common law
- This case laid down the principle of legality
- states that common law fundamental rights cannot be overridden by general or ambiguous words in Acts of Parliament
- Thus, fundamental rights can only be overridden expressly, not impliedly, by Acts of Parliament
UNISON [2017]
- Whether employment tribunal fees, introduced by the UK government in 2013, unlawfully restricted access to justice and were therefore unconstitutional and unlawful
- Held fees were unlawful as they restricted access to justice
What is the ECHR?
- international human rights treaty
- between 47 member states
- established 1953 after WWII
What does ECHR do?
- enforces Governments to abide by certain standards of behaviour and to protect the basic rights and freedoms of people
