Rules of Human Rights Law (OCR A-Level Law): Revision Notes
Rules of Human Rights Law
Introduction to human rights law
Human rights law is one of the four main substantive areas of law in the OCR A-Level specification and is examined in Section B of Component 3. This area focuses on the critical awareness of human rights laws and their application in practical, scenario-based situations.
Rights are rules or laws which are believed to belong to every person without discrimination. Individual rights, such as the right not to be killed, have been critically important since civilisations were established thousands of years ago. However, throughout history, certain authorities or governments have attempted to remove or restrict such fundamental human rights.
The study of human rights law combines both theoretical understanding of rights principles and practical application to real-world scenarios. This dual focus is essential for exam success in Component 3, Section B.
The legal framework: HRA 1998 and ECHR
The relationship between the ECHR and UK law
The UK acknowledged the European Convention on Human Rights (ECHR) from its inception in 1953. However, the Convention was not fully incorporated into English law until the Human Rights Act 1998 was passed.
This created an important distinction in how rights were treated:
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1953–2000: Rights under the ECHR were persuasive but not absolutely binding on English courts. If a UK citizen wished to challenge a court's decision which contravened the ECHR, a case had to be stated to the European Court of Human Rights.
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2000 onwards: When the Human Rights Act 1998 came into force, rights under the ECHR became directly enforceable in UK courts.
Common Exam Mistake
Students often confuse when the ECHR was signed (1953) with when it became binding in UK courts (2000 with the HRA 1998). Remember: the UK acknowledged the ECHR for nearly 50 years before it became directly enforceable in domestic courts.
Two guiding factors since 1998
Since 1998, English courts must take into consideration two guiding factors when interpreting rights within the law:
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Section 3 compatibility requirement: All laws must be interpreted in a way that is compatible with the Human Rights Act 1998 under section 3.
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No contravention of ECHR Articles: No law is to be in contravention with any Article under the European Convention on Human Rights.
The significance of the Human Rights Act 1998
The Act brought into law, for the first time, many rights in a single document that citizens thought already existed but largely did not. Before the passing of this Act, there was no single document or full classification in UK law of human rights.
The Human Rights Act 1998 represents a constitutional milestone for the UK. Unlike many other democratic nations, the UK does not have a single written constitution. The HRA 1998 partially filled this gap by codifying fundamental rights and freedoms in one accessible piece of legislation.
The Human Rights Act 1998 has been seen as both a benefit and a detriment to UK citizens. The law under the Act, and the consequent case law that has developed, continues to generate significant debate and controversy.
Principles underpinning human rights
Within the rules of human rights, there are specific and certain historic and theoretical features that underpin these rules, or principles, of human rights. Five key principles form the foundation of modern human rights law:
1. Universality
Universality is the idea that all rights and freedoms apply to all of the UK's citizens, regardless of race, gender, religion or any other characteristic. This principle ensures that human rights are not selective or discriminatory but are available to everyone equally.
Universality means that human rights are not privileges granted by the state but inherent entitlements that belong to all people simply by virtue of being human. This principle prevents governments from selectively applying rights based on arbitrary characteristics.
2. Interdependence
Interdependence is the idea that all rights cannot be enjoyed or operate without the other rights. This means that all rights operate because of, and not in spite of, each other. Rights work together as a cohesive system rather than as isolated entitlements.
Practical Example: Interdependence in Action
The right to a fair trial (Article 6 ECHR) depends on the right to freedom of expression (Article 10) because a defendant needs to be able to speak freely in their defence. Similarly, the right to education (Article 2, Protocol 1) supports the right to freedom of thought and conscience (Article 9) by enabling informed decision-making. Rights do not exist in isolation but form an interconnected web.
3. Inalienable and indivisible rights
Inalienable and indivisible rights are rights that cannot be taken away. However, it is important to note that most rights under the ECHR do face restrictions to allow the lawful operation of the law. This means that while rights cannot be permanently removed, they may be temporarily limited in specific circumstances defined by law.
Understanding Limitations
While rights are described as "inalienable," this does not mean they are absolute. Most ECHR rights (except absolute rights like the prohibition of torture under Article 3) contain provisions allowing for lawful limitations. These limitations must be:
- Prescribed by law
- Necessary in a democratic society
- Proportionate to the aim pursued
4. Dignity
Dignity is the most basic tenant of an individual. It is the belief that each human being holds a special value in their own right. No matter a person's wealth, status, education, or health, they should still be recognised as a human being with inherent worth. Dignity forms the philosophical foundation for why human rights exist.
5. Pluralism
Pluralism recognises that society contains diverse views, beliefs, and lifestyles. Human rights law must accommodate this diversity while protecting fundamental freedoms.
Pluralism acknowledges that in a democratic society, people will hold conflicting views and live different lifestyles. Human rights law must balance protecting individual freedoms with maintaining social cohesion. This principle is particularly relevant when courts must balance competing rights, such as freedom of expression versus the right to privacy.
Theory of human rights law
This section examines the different theories of rights, how they have developed and been restricted, and how they are contrasted with civil liberties.
Theories of rights are systems of ideas proposed to explain the rationale of having rights based on general principles. These theories are sociological concepts that underpin the question "why do we have rights?" rather than "what rights do we have?"
Critical Understanding for Exams
It is important to understand that theories of human rights (especially natural rights and legal rights) are theoretical concepts rather than legal facts. As theories, there is room for debate, conjecture and challenge when applying them. This means you can critically evaluate and discuss competing perspectives on the foundations of human rights.
Ancient origins of human rights theory
The concept and basic theories of human rights can be traced back to ancient civilisations and their influence on the rest of the world:
The Ancient Greeks believed, through the teachings of the great philosophers, that certain rights were above normal laws introduced by man. They believed that rights came from divine authority and intervention.
The Influence of Greek Philosophy
Greek philosophers like Aristotle and the Stoics developed early concepts of natural justice and universal moral principles. These ideas laid the groundwork for later theories of natural rights that would influence Enlightenment thinkers and modern human rights law.
Cyrus the Great and the Persian Empire: When Cyrus, the King of Persia, conquered the city of Babylon in 539 BCE, he freed all the slaves, allowed them to return to their homelands and reinstated religious freedom. This idea of having basic human rights spread through Europe and was eventually championed by the Roman Empire through rights and natural law.
Natural law refers to rules which are not necessarily written down as laws but are nevertheless followed by citizens. This concept suggests that certain moral principles are inherent and universal, transcending man-made legislation.
Development of constitutional rights
As societies progressed, and revolutions were fought for changes in the way countries were ruled, the idea of human rights replaced divine rule. These rights were incorporated as fundamental to their constitutions (sets of rules which state how a country is to be run and the specific rights of its citizens).
Key historical documents that established constitutional rights include:
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English Bill of Rights 1689: Established fundamental rights and liberties for English citizens and limited the powers of the monarchy.
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American Declaration of Independence 1776 (as amended in 1791): Set out the foundational principles of rights for American citizens, with amendments adding specific protections.
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French Declaration of the Rights of Man and Citizen 1789: Defined individual and collective rights during the French Revolution.
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Universal Declaration of Human Rights 1948: Created a comprehensive international framework for human rights following World War II.
Evolution of Rights Protection
These documents represent the evolution from divine authority to codified, constitutional protection of human rights. They demonstrate how societies increasingly recognised the need to formally protect fundamental freedoms through written law. Each document responded to specific historical circumstances, from limiting monarchical power (1689) to establishing international human rights standards after the atrocities of World War II (1948).
Exam guidance
Essential Exam Tips
When answering exam questions on the rules and theory of human rights law:
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Clearly distinguish between the ECHR (the Convention itself, established 1953) and the Human Rights Act 1998 (the UK legislation that incorporated the ECHR into domestic law).
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Remember the timeline: the UK signed the ECHR in 1953, but it only became binding on English courts when the HRA 1998 came into force in 2000.
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When discussing the principles of human rights (universality, interdependence, inalienable rights, dignity, pluralism), provide practical examples of how they apply.
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Understand that theories of rights are conceptual frameworks, not established legal facts. This means you can analyse, evaluate, and critique them.
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Be prepared to apply Section 3 of the HRA 1998 to scenario questions, explaining how courts must interpret laws compatibly with human rights.
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For essay questions, consider both the benefits and criticisms of the Human Rights Act 1998 in UK law.
Remember!
Key Points to Remember:
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Since 1998, English courts must interpret all laws compatibly with the Human Rights Act 1998 (Section 3) and ensure no law contravenes ECHR Articles.
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The UK signed the ECHR in 1953, but it only became enforceable in UK courts when the HRA 1998 came into force in 2000.
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Five key principles underpin human rights: universality, interdependence, inalienable and indivisible rights, dignity, and pluralism.
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Human rights theory traces back to ancient civilisations (Greeks, Persians, Romans) and the concept of natural law.
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Key constitutional documents include the English Bill of Rights 1689, American Declaration of Independence 1776, French Declaration 1789, and Universal Declaration of Human Rights 1948.