Chapter 9 Guidance to answering the end-of-chapter questions

1. What do you understand by the term ‘human rights’? How do they differ from civil liberties?

• Start by thinking about the people that have human rights. Do human rights apply differently to different people, or are they inherent to all people regardless of nationality or citizenship?
• What does it mean to say that human rights are ‘inalienable’?
• Civil liberties are ‘residual’. What does that mean? Think about how you might identify civil liberties or how they may be removed.
• Do human rights or civil liberties afford greater protection?
• For help see pp. 250–251.

2. What are the different waves of human rights?

• Human rights are often discussed in terms of ‘waves’, which explain the type of rights that are under discussion.
• The first wave comprises civil and political rights and freedoms necessary to ensure respect for basic citizenship requirements linked to security, liberty and equality. This first wave is sometimes referred to as comprising ‘negative’ rights. What do you understand this to mean?
• The second-generation or second wave of rights requires that the state provides or guarantees something in an active sense. What types of rights does this include?
• Who are third generation or third-wave rights accorded to?
• To refresh your understanding, look again at pp. 251–252.

3. What is the European Convention on Human Rights (ECHR) and how does it operate?

• Is the European Convention on Human Rights a domestic or international human rights instrument?
• Can you remember what the ‘Council of Europe’ is?
• Watch out for a common mistake: make sure that you can explain the relationship and distinction between the ECHR and the EU.
• Can you name some of the rights in the ECHR (‘the Convention’) and explain how the interpretation of those rights differs from the way domestic provisions are interpreted? See p. 257. When thinking about this, try to remember what is meant by the ‘margin of appreciation’.
• What do you understand about the terms ‘absolute’, ‘derogable’ and ‘qualified’ rights? (pp. 261–262). 
• Does the ECHR form a part of domestic law? Remember your learning about the term ‘dualist’ here.

4. What is the Human Rights Act 1998, and how does that operate?

• Since the UK is a dualist state, the ECHR does not in and of itself have any force of law within the UK. What, then, did the Human Rights Act 1998 change about the way rights could be asserted in the UK? 
• Does the Human Rights Act 1998 provide a new set of rights or does it provide a new mechanism for the enforcement of existing rights through the domestic courts?
• Can you explain the basic features of the Human Rights Act 1998? For example, what does the Act require UK courts to do when interpreting primary legislation?
• What do you understand by the term ‘declaration of incompatibility?
• Is the Human Rights Act 1998 entrenched or can it be repealed?
• See pp. 266–272 for help with these questions.

5. To what extent does the HRA 1998 allow an effective enforcement of ECHR rights in the UK?

• Remember that the ECHR does not form part of UK law.
• Look back at section 3 HRA 1998: domestic judges are under a duty to read UK law compatibly with the ECHR ‘so far as it is possible to do so’. Does this mean that the courts will always read UK law compatibly with the ECHR?
• How would you describe the effect of a ‘declaration of incompatibility’ under section 4 HRA 1998? Does it give courts the ability to strike down or disapply legislation? Which body or bodies have the final decision-making power with respect to whether UK law should be amended to make it compatible with the ECHR?

6. How do the terms of the European Communities Act 1972 (ECA 1972) and the HRA 1998 compare and contrast in relation to the application of EU law and the ECHR in the domestic jurisdiction?

• Contrast the HRA 1998 provisions (especially sections 3 and 4) with the provisions of the ECA 1972 that led to the Factortame decisions, discussed in Chapter 8. See p. 268 for a hint.
• How is the case law of the ECHR treated under section 2 HRA 1998 and how was the case law of the EU treated under section 3 ECA 1972?
• Can you recall how the human rights context differs from the EU context as regards parliamentary supremacy? Think particularly about the difference when an Act contradicts a provision of EU law or a Convention right. Do (or did) the provisions of either EU law or the ECHR have overriding effect in the UK?

7. To what extent would it be better to adopt the ECA 1972 regime in relation to human rights and the HRA 1998 regime in relation to EU law provisions? Why do you believe this and what evidence do you have in support of and against your arguments?

• There is no correct answer to this question. As a starting point, you might find it helps to think through the differences between the treatment of international law under these two pieces of legislation.
• In particular, what is different about the way that the ECA 1972 required courts to treat incompatibilities between UK law and EU law, and the way that the HRA 1998 requires courts to treat incompatibilities with the ECHR?
• How do the ECA 1972 and the HRA 1998 differ as regards parliamentary sovereignty? Is Parliament free to legislate in contravention of the ECHR?
• If you need a prompt for thinking through these points, look back at the extract from Lord Justice Laws’ judgment in International Transport Roth GmbH and others, at p. 278.