INDIVIDUAL AND THE STATE

COURSE OBJECTIVES

By the end of this course students will be able to:

1. Identify and explain the basic principles governing aspects of the European
Convention on Human Rights (ECHR), the Human Rights Act and judicial review.
This will involve a grasp not only of black letter law but also of more basic
principles underpinning the notion of human rights and principles such as ultra vires;
this understanding will be given depth by the use of comparative materials relating to
the constitutional arrangements of other countries in order to foster a better
appreciation of the distinctive nature of the Human Rights Act in particular.

2. Relate different topics within the course to each other and understand how the same
basic principles run through and inform discussion of all the different areas of law and
practice discussed. In particular, given that the Human Rights gives domestic effect to
the ECHR, these two basic topics are closely interlinked and will be taught as such.

3. Carry out research independently of lectures and seminars: this will involve not only
the traditional legal research skills of locating reading and summarising law reports,
articles and passages from textbooks, but also following contemporary controversies
over the Human Rights Act and the proposed British Bill of Rights in the media, and
considering how they relate to the particular topics being studied.

4. Engage in critical analysis of the principles represented by the ECHR and the system
for protecting and derogating from the rights it protects, at both the international and
domestic law levels. Students will also be able to consider in an informed way the
efficacy and legitimacy of the judge-made law of judicial review. Students will be
able to employ a variety of perspectives which will be indicated in lectures and
discussed in tutorials as a means of reflecting critically upon the areas of law
considered.

5. Recognise the ways in which the development of human rights and of judicial review
was influenced by a variety of political, economic and social factors and be able to
anticipate how changes in these factors in the future may result in changes to the
systems of rights protection and protection from unlawful government action which
we will study.

6. Deploy key oral skills: these will have been developed through participation in
discussion and debates in tutorials; particular emphasis will be placed upon the ability
to express oneself clearly and logically and to sustain a line of argument in the face of
opposition.



INDIVIDUAL AND THE STATE
SYLLABUS

MICHAELMAS TERM

Part I The European Convention on Human Rights

Background and Operation of the ECHR System
Introduction to the concept of human rights from a legal perspective; consideration of the
context for the creation and development of the Council of Europe human rights architecture;
introduction and map of the structure of the European Court of Human Rights and its
enforcement mechanisms

Complaint Mechanisms and Admissibility
Familiarisation with the ways in which a complaint might be brought to the Court including
the different kinds of actions that can take place within the European Court of Human Rights
structure; outline and analysis the admissibility requirements for individual complaints
(including jurisdiction under Article 1).

Outline of Protected Rights
An overview of the rights protected in the Convention and its Protocols in a very general
sense, allowing us to consider whether any families or categories of rights can be
identified within the Convention system and to question whether any kinds of rights appear to
be omitted from the Convention and why. Introducing the concept and development of
positive obligations within the Convention.

Key Convention Principles
Familiarisation with the operation and provenance of core Convention principles, namely
margin of appreciation, proportionality, evolutive interpretation, and European Consensus
with a view to developing a critical perspective on their operation.

Principles in Action: Article 8
Close analysis of Article 8and especially a case study of the development of LGBT rights
under Article 8to outline and understand the operation of the key convention principles in
action.

Article 15 of the Convention the Derogation System
Introduction to the ways in which the ECHR deals with emergencies and the principle that
states may need to act more repressively in times of emergency than might usually be the
case and, furthermore, that human rights law ought to facilitate this within limits.
Consideration of the definition of an emergency in Article 15 (with comparison to some other
international human rights law definition), the concept of derogation, and the application
and operation of core Convention principles within an Article 15 context.

The Future of the Convention and of the Court
As a hugely overburdened Court, the ECtHR is undertaking substantive developments in
order to try to secure its future. In this topic we will become familiar with the sustainability
crisis facing the European Court of Human Rights and the options available to manage this,
identify what dimensions the desirability of different options should be measured against
taking into account the nature of the Court as a constitutionalist actor, and incorporate the
insights gleaned from Lectures 1-6 into an analysis of sustainability and reform within the
Strasbourg system

Part II giving domestic effect to the ECHR: the Human Rights Act

The historical position in the UK and the Bill of Rights Debate
Negative liberties; legislative protection and legislative inroads; the common law and
influence of the ECHR; the Bill of Rights debate: theoretical positions and practicalities;
Conservative and leftist objections; the judiciary; possible models for a BOR: Canada, the
U.S.

The Human Rights Act 1998 a basic outline
The basic scheme of the Act the White Paper, parliamentary sovereignty; the Act in
summary and how it compares internationally.

The HRA the interpretative and declaratory functions
Pre-legislative scrutiny; the interpretative duty (s 3(1)); the position of Convention
jurisprudence; declarations of incompatibility.


EPIPHANY TERM

The HRA scope of application, horizontality and remedies
Who is bound by the Act? The definition of public authority core and hybrid public
authorities; horizontal effect: the influence of the on private law; using Convention rights
as a sword and a shield.

The HRA evaluation and conclusions
The margin of appreciation in domestic courts; judicial deference to policy making;
evaluation and conclusions.


PART III: JUDICIAL REVIEW

The raison dtre for judicial review and a basic introduction
Perspectives on the purposes of judicial review and justifications for it; its role within the
constitution; basic principles of judicial review.

The prerequisites for judicial review
Amenability against whom can one apply for judicial review; standing; time limits;
permission; procedural exclusivity.

Grounds of Review I: Procedural Fairness and Bias
The rule against bias direct and indirect bias; the duty to act fairly when will it apply?; the
duty to act fairly content: notice, right to make representations; oral hearing; witnesses,
cross-examination and legal representation; right to reasons for a decision.

Grounds of Review II: Illegality
Simple illegality; error of law; failure to retain discretion; abuse of discretion irrelevant
considerations; improper purpose.

Grounds of Review III: Irrationality/substantive grounds
Frustration of substantive legitimate expectations; Wednesbury unreasonableness /
Irrationality; proportionality?