LAW3214 · Week 1

Root
Topic
Theme
Sub-theme
Detail
Case
The European System of Human Rights Protection
Historical Origins
Old Liberties to New Rights
Magna Carta → Article 6(1)
*Case: Semayne v Gresham* → Article 8
*Case: Entick v Carrington* → Article 8
Habeas Corpus Act 1679 → Article 5(4)
Bill of Rights 1689 → Articles 3 & 5(3)
Act of Settlement 1701 → Article 6
Revolutions & Their Legacy
Revolution Settlement 1689
'Prescribed by law' origins
Parliamentary democracy emerges
Enlightenment revolutions
US Bill of Rights 1791
*Case: Marbury v Madison* (1803)
French Declaration 1789
Post-War Foundations
Failed States & Consequences
Germany and Italy collapsed
League of Nations failed
Atlantic Charter 1941
Nuremberg Trials
Individuals as perpetrators
UDHR 1948
Inherent dignity principle
Aspirational, not enforceable
ICCPR 1966 follows
Council of Europe
Treaty of London
Article 3: rule of law requirement
Withdrawal/expulsion possible
Greece under colonels
Russia 2022
The ECHR
Creation & Key Features
Drafted 1949, concluded 1950
Revolutionary: citizens sue states
UK ratified first (March 1951)
British role in drafting
Council of Europe, NOT the EU
Court sits in Strasbourg
Right of Individual Petition
UK accepted 1966
Permanent since Protocol 11
Cabinet subcommittee decision
ECHR as Law-Making Treaty
*Case: Wemhoff v FRG* (1968)
10,000+ judgments
Article 1: secure rights to all
Article 46: binding judgments
Committee of Ministers supervises
Categories of Rights
Absolute Rights
Cannot be limited ever
Article 3: prohibition of torture
Tyrer v UK
Soering v UK
Article 6: fair trial (composite)
Some components limitable
Overall fairness absolute
Strong Rights
Strictly defined exceptions only
Article 2: right to life
'No more than absolutely necessary'
Higher proportionality threshold
Article 4: prohibition of slavery
Article 5: right to liberty
Qualified Rights
Limited on broad public interest
Articles 8, 9, 10, 11
Article 8 as paradigm example
Prescribed by law
Legitimate aim
Necessary in democratic society
Protocol Rights
Protocol 1: property, education, vote
Protocol 13: death penalty abolished
Art. 13: effective remedy (not in HRA)
Interpretation Principles
Four Key Principles
Legality
Necessity
Proportionality (*Bank Mellat* test)
Accountability
Implied Rights
Golder v UK
Right of access to court
Hirst v UK (No 2)
Right to vote implied
Margin of appreciation
Precedent & Living Instrument
Chapman v UK
Not formally bound
Follows for legal certainty
Departs on emerging consensus
Living instrument doctrine
*Case: Goodwin v UK* (transsexual rights)
Occasional inconsistency
*Case: Austin v UK* (kettling)
UK & the ECHR
The HRA 1998
Convention rights in UK courts
'Soft' incorporation
s.3: interpretive obligation
s.4: declaration of incompatibility
Parliament keeps last word
Impact of Strasbourg on UK Law
*Sunday Times* → Contempt of Court Act 1981
*Malone* → Interception of Communications Act 1985
*Campbell and Cosans* → no corporal punishment
*Goodwin* → Gender Recognition Act 2004
*McGonnell* → Constitutional Reform Act 2005
*Marper*, *Gillan* → Protection of Freedoms Act 2012
What Leaving Would Unpick
Belfast/Good Friday Agreement
Devolution settlements
TCA crime & borders provisions
EU data adequacy (Article 8)
Political Constitutionalism vs Post-War Model
Westminster Model
Parliamentary sovereignty
Fusion of powers
Weak judiciary
Political accountability only
Post-War Model
Constitutional supremacy
Separation of powers
Enforceable rights via courts
Protects discrete & insular minorities
Paradigm: German Basic Law 1949
Practical Skills
Using HUDOC
Search by application number
Look for Chamber/Grand Chamber
Focus on 'The Law' section
Court's assessment is key part
Download PDF to annotate
Reading ECtHR Cases
Starred cases are essential
Facts → domestic proceedings → skip
'The Law' → Court's Assessment → read
Dissents can be illuminating