21. Applications: prisoners’ rights

2021 ◽  
pp. 433-447
Author(s):  
Howard Davis
Keyword(s):  
Human Rights ◽  
The State ◽  
European Convention ◽  
Legal Knowledge ◽  
Key Points ◽  
Self Test ◽  
The Uk ◽  
Article 5 ◽  
The Impact ◽  
Domestic Law

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. It discusses European Convention law and relates it to domestic law under the HRA. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter considers the application of Convention rights in the field of prisoners’ rights; the impact of Convention rights on prisoners in the UK is considered. Prisoners remain within the protection of the European Convention on Human Rights, though the application of these rights will take their position into account. Prisoners’ rights include not only rights to the non-arbitrary loss of liberty (Article 5) and rights to fair procedures (Articles 5 and 6), but also not to be disproportionately denied the rights and freedoms in Articles 8–11. Imprisonment deprives individuals of their liberty and, therefore, is a public function for which the state is responsible under the Convention. The controversy over prisoners’ right to vote is discussed in Chapter 25.

15. Article 8: right to respect for private and family life

2021 ◽  
pp. 311-342
Author(s):  
Howard Davis
Keyword(s):  
Human Rights ◽  
Family Life ◽  
The State ◽  
Private Life ◽  
European Convention ◽  
Legal Knowledge ◽  
Key Points ◽  
Self Test ◽  
Domestic Law

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. It discusses European Convention law and relates it to domestic law under the HRA. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter focuses on Article 8. Article 8 is concerned with matters that are considered personal, over which individuals are sovereign, and with which the state should not interfere. In its first paragraph, it recognises ‘private life’, ‘family life’, ‘home’, and ‘correspondence’ as the general concepts in terms of which this sphere of the personal is to be protected under the European Convention on Human Rights. These terms are defined and discussed in the chapter. The second paragraph presents the general legal conditions that must be satisfied before such interference can be considered justified and compatible with the Convention. Much of the chapter is concerned with the application of Article 8 to various situations such as surveillance, the environment, deportation, abortion, and euthanasia. Article 8 is also invoked in respect of important and controversial matters such as the situation of transgendered persons and the duties of states towards homosexual families.

26. Anti-terrorism law and human rights

2021 ◽  
pp. 500-522
Author(s):  
Howard Davis
Keyword(s):  
Human Rights ◽  
Private Life ◽  
European Convention ◽  
Key Points ◽  
Definition Of ◽  
The Uk ◽  
The Right ◽  
Special Circumstances ◽  
The Impact ◽  
Domestic Law

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of la and legal debate. It discusses European Convention law and relates it to domestic law under the HRA. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter considers the application of human rights in the special circumstances of the threat of terrorism and counter-terrorism measures taken in the UK. It considers the compatibility of the Terrorism Act 2000, and other subsequent measures, with human rights. This includes matters such as the definition of terrorism, police powers under the Act (such as random stop and search), and measures, such as TPIMs, to control terrorist suspects. The impact of these measures on the right to liberty and on private life are important themes. The chapter also considers the effect of such measures on the right to a fair hearing (in Articles 5 and 6). These special powers are often controversial giving rise, as they do, to important tensions between the rule of law and the duty on states to uphold the safety and security of the population.

5. The Human Rights Act 1998 (2): proceedings and remedies

2021 ◽  
pp. 114-129
Author(s):  
Howard Davis
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Legal Knowledge ◽  
Key Points ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Self Test ◽  
The Law ◽  
The Uk ◽  
The Right

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter continues the analysis of the Human Rights Act. It discusses how cases can be brought under the Human Rights Act 1998 (HRA) and what remedies are available from the courts if a violation of a Convention right is found. The aim here is to delve deeper into the issue of how the rights of the European Convention on Human Rights (ECHR) are given further effect in the law of the UK by the HRA. The main issues discussed in the chapter include the importance of remedies and Article 13 ECHR—the right to a remedy, procedural issues for seeking remedies under the HRA, and remedies available under the HRA.

8. Article 2: right to life

2021 ◽  
pp. 165-193
Author(s):  
Howard Davis
Keyword(s):  
Human Rights ◽  
Use Of Force ◽  
The State ◽  
European Convention ◽  
Legal Knowledge ◽  
Right To Life ◽  
General Duty ◽  
European Court ◽  
Key Points ◽  
Domestic Law

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. It discusses European Convention law and relates it to domestic law under the HRA. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter focuses on Article 2 of the European Convention on Human Rights, which imposes on the state the general duty of protecting ‘everyone’s right to life’. Article 2 specifically states that the first duty of states is to protect the physical security of all those within their jurisdiction. It describes the only purposes for which the intentional use of force can be lawfully justified. In interpreting and applying Article 2, the European Court of Human Rights has identified and developed a number of general principles to which the domestic laws of signatory states must adhere—in particular the duty to investigate deaths for which the state is responsible. These principles are discussed in detail in the chapter.

9. Article 3: prohibition of torture

2021 ◽  
pp. 194-215
Author(s):  
Howard Davis
Keyword(s):  
The State ◽  
European Convention ◽  
State Responsibility ◽  
Legal Knowledge ◽  
Key Points ◽  
Wide Range ◽  
Degrading Treatment ◽  
Self Test ◽  
The Absolute ◽  
Domestic Law

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. It discusses European Convention law and relates it to domestic law under the HRA. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter the absolute ban on torture and inhuman or degrading treatment that Article 3 requires. The basic terms (torture and inhuman and degrading treatment and punishment) are defined. The absolute nature of the ban is discussed. The chapter also discusses the broad nature of state responsibility to prevent suffering that is severe enough to violate Article 3. Article 3 creates limits to what is acceptable as punishment and, more importantly, applies in a wide range of situations for which the state has responsibility in respect to otherwise lawful activity not involving an intention to harm.

11. Article 5: right to liberty and security

2021 ◽  
pp. 224-251
Author(s):  
Howard Davis
Keyword(s):  
Mentally Ill ◽  
Personal Autonomy ◽  
European Convention ◽  
Legal Knowledge ◽  
Key Points ◽  
Social Subordination ◽  
Immigration And Asylum ◽  
The Right ◽  
Article 5 ◽  
Domestic Law

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. It discusses European Convention law and relates it to domestic law under the HRA. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter discusses Article 5 the right to liberty. This is liberty in its classic sense, addressing the physical liberty of a person (as opposed to broader concepts of liberty, such as the sense of personal autonomy and the lack of individual or social subordination). Article 5 deals with restrictions of liberty like arrest and detention by the police, imprisonment after conviction, detention of the mentally ill in hospitals, and the detention of foreigners in the context of immigration and asylum. It defines and restricts the purposes for which a person can be deprived of his or her liberty and, importantly, requires that people have access to judicial supervision so that the lawfulness of any deprivation of liberty can be examined and, if necessary, remedied. The overriding guarantee of Article 5 is the right not to be detained in an arbitrary manner.

14. Introduction to Articles 8–11

2021 ◽  
pp. 305-310
Author(s):  
Howard Davis
Keyword(s):  
Family Life ◽  
Freedom Of Expression ◽  
The State ◽  
General Idea ◽  
European Convention ◽  
Legal Knowledge ◽  
Individual Freedom ◽  
Key Points ◽  
The Media ◽  
Domestic Law

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. It discusses European Convention law and relates it to domestic law under the HRA. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter introduces the general idea of qualified rights under the Convention. These are the subjects of the next four chapters. Articles 8–11, involve individual freedom: freedom to live a private and family life (Article 8); freedom to hold and demonstrate religious and other beliefs (Article 9); freedom of expression, including the freedom of the media (Article 10); and the freedom to ‘assemble’ and ‘associate’ (Article 11). The articles have a similar, two-paragraph structure that requires the courts to decide, first, whether some action for which the state is responsible interferes with a protected freedom and, if it does, whether the state has shown that the interference is justified in terms of the second paragraph of the Article involved.

24. Article 2 of the First Protocol: right to education

2021 ◽  
pp. 479-487
Author(s):  
Howard Davis
Keyword(s):  
European Convention ◽  
Social Rights ◽  
Legal Knowledge ◽  
Access To Education ◽  
Right To Education ◽  
Key Points ◽  
Self Test ◽  
Totalitarian Regimes ◽  
Right Of Access ◽  
Domestic Law

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. It discusses European Convention law and relates it to domestic law under the HRA. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter discusses Article 2 of the First Protocol, which guarantees two things: first, a right of access to education; and, second, an obligation on the state to ensure that the religious and philosophical convictions of parents concerning the education of their children are respected. The former is one of the few places where the Convention expressly refers to ‘social rights’, which are problematic because they can compel states to large expenditure and can distort democratically chosen priorities for expenditure. The latter reflects the fear of ideological indoctrination that has been associated with totalitarian regimes and is, predominantly, a negative obligation on states not to attempt to pervert the development of children’s minds.

6. Convention law: pervasive themes

2021 ◽  
pp. 130-146
Author(s):  
Howard Davis
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
European Convention ◽  
Legal Knowledge ◽  
The Rule Of Law ◽  
European Court ◽  
Margin Of Appreciation ◽  
Key Points ◽  
External Sources ◽  
Self Test

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, discussion points and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter discusses the various concepts that pervade the way the European Convention on Human Rights (ECHR) is interpreted and, therefore, how Convention rights under the HRA are applied. The chapter considers the internal and external sources used to interpret the text. It goes on to consider the concepts that the European Court of Human Rights has developed when applying the Convention. In particular the ‘living instrument’ doctrine, the idea of the rule of law, the margin of appreciation, proportionality, and democracy (in a Convention context) are considered and explored.

25. Article 3 of the First Protocol: right to free elections

2021 ◽  
pp. 488-499
Author(s):  
Howard Davis
Keyword(s):  
Human Rights ◽  
Voting Rights ◽  
European Convention ◽  
Local Elections ◽  
Individual Rights ◽  
Legal Knowledge ◽  
Political Democracy ◽  
Political Processes ◽  
Key Points ◽  
Domestic Law

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. It discusses European Convention law and relates it to domestic law under the HRA. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter deals with Article 3 of the First Protocol which imposes on states a duty to hold elections. At the heart of Article 3 is the view that the best way to uphold human rights is through upholding an ‘effective political democracy’. Human rights require states to respect various rights and freedoms that are necessary for any system if it is to be democratic. Though Article 3 of the First Protocol appears to provide only a collective right to fair elections, it has been interpreted to also provide for individual rights to vote, to stand, and to sit, if elected. Article 3 does not, however, provide wide rights to participate in political processes. Its scope is confined to elections for ‘the legislature’, which do not include local elections or referendums. The controversy over prisoners’ voting rights is discussed in this chapter.

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