First Class Individual and the State (Complete) Notes

Individual and the State
Table of Contents
LECTURE 1: INTRODUCTION.......................................................................................................................... 1
LECTURE 2: BELMARSH.................................................................................................................................. 5
LECTURE 3: EUROPEAN CONVENTION ON HUMAN RIGHTS..........................................................................11
LECTURE 4: THE CONVENTION RIGHTS AND THEIR INTERPRETATION...........................................................16
LECTURE 5: ARTICLE 10 – FREEDOM OF EXPRESSION....................................................................................33
LECTURE 6: ARTICLE 8 ECHR: THE RIGHT TO PRIVATE AND FAMILY LIFE........................................................38
LECTURE 7: ARTICLE 15 ECHR: DEROGATION IN TIME OF EMERGENCY AND THE COVID-19 PANDEMIC.........45
LECTURE 8: THE HUMAN RIGHTS ACT 1998 (SECTIONS 1 AND 2)...................................................................52
LECTURE 9: SECTIONS 3 AND 4 HRA............................................................................................................. 55
LECTURE 10: SECTION 6 HRA....................................................................................................................... 59
LECTURE 11: FUTURE OF THE HRA............................................................................................................... 69
LECTURE 12: INTRODUCTION TO JUDICIAL REVIEW......................................................................................77
LECTURE 13: ADMINISTRATIVE RATIONALITY AND THE INDEPENDENT REVIEW OF ADMINISTRATIVE LAW...83
LECTURE 14: THE PREREQUISITES FOR JUDICIAL REVIEW..............................................................................91
LECTURE 15: ILLEGALITY............................................................................................................................ 104
LECTURE 16: PROCEDURAL IMPROPRIETY I................................................................................................ 119
LECTURE 17: PROCEDURAL IMPROPRIETY II...............................................................................................130
LECTURE 18: IRRATIONALITY/UNREASONABLENESS AND PROPORTIONALITY.............................................142
LECTURE 19: REVISION.............................................................................................................................. 152

Lecture 1: Introduction

Why the Individual and the State?

• Complementary to UK Con => Public Law
• Individual enforcement of human rights: ECHR and HRA 1998 (Michaelmas term)
• Admin law: individual challenges to the powers of public authorities, aka judicial
review (Epiphany term)

What are human rights?

• Different conceptions define what rights are worthy of this designation and how
balance could be reached, e.g.
• Rights intrinsic to human nature (Finnis)
o Dignity
• Rights intrinsic to human autonomy (Griffin)
o Freedom, equality (?), dignity

,  Rights that reflect the inherent and equal moral worth of each individual;
 Rights necessary to individual autonomy, growth and flourishing;
 Rights that form the building blocks of a democratic society.

There are some critical considerations placing limits on the scope of human rights. In
thinking about the scope of human rights, it is essential to reflect upon the following
questions:

 What do we do when rights are in conflict with one another? For example, one
person’s right to expression might conflict with another’s right to private life.
 What do we do when the government determines that a certain action is required in
the interests of society at large, but this is in conflict with human rights law?
 Does human rights law give the judiciary a disproportionately powerful role in
determining state action?

These questions highlight that whereas the concept of ‘human rights’ may sound absolute,
the practice of human rights law contains a number of compromises. Even in jurisdictions
with a generally high level of commitment to internationally recognised human rights, only
core and select rights are considered to be absolute, such as the freedom from slavery or
torture and the right to non-retroactivity of criminal law. Otherwise, human rights treaties
and national Bills of Rights tend to allow necessary and proportionate restrictions on most
rights, e.g.:
 The right to protest may be limited by the need to preserve public order;
 The right to free speech may be limited by the needs of national security, public
safety and private rights to reputation;
 The right to life may be limited by the need to protect the lives of others.

Overall, you will find that human rights law is marked by judicial balancing (e.g. reaching the
right balance between individual human rights and public interests or between the
competing human rights of different private persons), as well as by debates pertaining to
the separation of powers (e.g. are judges or Parliament better placed to decide the relative
value of different rights?). The latter debate is particularly pronounced in the United
Kingdom, due to the absence of a codified constitution.


Universal Declaration of Human Rights

‘All human beings are born free and equal in dignity and rights. They are endowed with
reason and conscience and should act towards one another in a spirit of brotherhood.’
--Article 1 UDHR

Which rights does the UDHR list?

Right to life, freedom from slavery & torture, legal recognition and equality before the law,
effective remedies & fair trial and arrest, non- retroactivity of criminal sanctions, right to
privacy, right to move within and to leave any country incl. to seek asylum, right to
nationality, to marry, to property, freedom of religion, speech, assembly, right to participate

,in government, to social security, to work, to rest/leisure, to an adequate standard of living,
to education, to culture.

UDHR values

• Freedom, equality, dignity
• Equality: equal moral worth
• Solidarity (brotherhood)?
• Democracy?

Key International Human Rights

• ICCPR (International Covenant of Civil and Political Rights)
• ICESCR (International Covenant of Economic, Social and Cultural Rights)
• Regional human rights law => European Convention on Human Rights and
Fundamental Freedoms 1950 (ECHR), American Convention on Human Rights;
African Charter on Human and Peoples' Rights; ASEAN Human Rights Declaration; EU
Charter of Fundamental Rights, et al.

Human Rights in State Constitutions

• French Declaration of the Rights of Man and of the Citizen 1789
• US Bill of rights 1791
• German Basic Law (Arts 1-19)
• Bill of Rights of South Africa (Ch 2, Constitution of South Africa 1996)
• Constituteproject.org

UK – no constitutional entrenchment of human rights

• Magna Carta 1215;
• Bill of Rights 1689;
• But now? Human Rights Act 1998

A tradition of civil 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’ : Wheeler v Leicester City Council [1985] AC 1054, 1065.

The rule of law and civil liberties

• AV Dicey: Introduction to the Study of the Law of the Constitution
• The rule of law:
The British Constitution is “the result of judicial decisions determining the rights of private
persons in particular cases brought before the Courts; whereas under many foreign

, constitutions the security… given to the rights of individuals results, or appears to result,
from the general principles of the constitution.”
• Sovereign Parliament

Civil liberties tradition in practice

• ‘if it is law it would be found in our books, but no such law ever existed in this
country’: Entick v Carrington, (1765) 95 ER 807.
• ‘[a]ccess to the courts is a constitutional right; it can only be denied by the
government if it persuades Parliament to pass legislation which specifically – in
effect by express provision – permits the executive to turn people away from the
court door’: R v Lord Chancellor, ex parte Witham [1998] QB 575, 586.
[see also R (UNISON) v Lord Chancellor [2017] UKSC 51].

Absence of rights in practice

• Malone v Metropolitan Police Commissioner [1979] Ch 344
• Malone v United Kingdom [1984] ECHR 10 => ECtHR finds breach of Art 8 ECHR.

Liberties vs rights

• Liberties: negative and residual
• Rights: positive and entrenched (or, at least, enumerated)

Towards a rights-based approach: the creation of the HRA

• Lord Irvine of Lairg, House of Lords Second Reading Debate, 3 Nov 1997, col 1228:
‘Our legal system has been unable to protect people in the 50 cases in which the European
Court has found a violation of the convention by the United Kingdom. That is more than any
other country except Italy. The trend has been upwards. Over half the violations have been
found since 1990.’
• The HRA 1998 => ‘Bringing Rights Home’

Towards a rights-based approach: the rise of the administrative
state

• Government dominates parliamentary agenda.
• Membership of international organisations.
• Post-WW2 welfare reform, e.g. NHS => rising obligations of public power, growth of
the administrative state.

Key sources governing relations between individual and state in the
UK

• International law (UDHR, ICCPR, ICESCR, ECHR);
• Domestic statutes (HRA);