Dr Kai Moller NAB 7.01

Additional Teachers:Dr Thomas Poole, Dr Peter Ramsay.

This course is available on the BA in Anthropology and Law and LLB in Laws. This course is available with permission as an outside option to students on other programmes where regulations permit. This course is not available to General Course students.

The course provides a challenging introduction to human rights law. The first term focuses on the European Convention on Human Rights with an in-depth analysis of the case law on several important rights, including but not limited to freedom of expression, freedom of association, freedom of religion and the right to private life. The second term deals with the UK Human Rights Act and builds  not  only  on  the  first  term’s  work  but  also  on  the  knowledge that students have acquired in Public Law in year one. Thus, students must engage with the law of two legal systems here: the European Convention on Human Rights and U.K. law.

The course takes a highly analytical approach; it will not be sufficient to approach the issues in a descriptive, “black letter” way. Rather, an overall aim is  to enable students to critically assess the European Court’s and the U.K. Supreme   Court’s   arguments   about   the   compatibility   of   a   policy   or administrative decision with human rights and the particularities of human rights adjudication within the U.K. legal system. To this end, the course will focus on the necessary doctrinal and conceptual framework – such as positive obligations, the margin of appreciation and proportionality –, an overview of the relevant case law, and in-depth analysis of selected problems in human rights law.

This course does not touch upon strategic or policy issues (such as the most effective ways to promote human rights, NGO practices, etc.); rather it focuses on the controversial and often difficult moral and political issues that arise in human rights adjudication and on unravelling the implications of the unusual (some would say idiosyncratic) way in which U.K. law has incorporated the ECHR. Regard will however be had to the current argument over whether or not the Act should be repealed.

The teaching of this course is mainly case-based. To complete it successfully, students must prepare for each seminar by reading and thinking through the relevant cases; the seminars will be conducted on the basis of the expectation that the students are familiar with the materials. There is no comprehensive textbook available for this course.

Syllabus: The history of human rights protection in the UK; theoretical aspects of human rights; the Human Rights Act 1998; human rights and parliamentary sovereignty; human rights and standards of review; human rights and the common law; precedent and human rights law. The rights to life and freedom from torture; freedom of expression; freedom of association and ‘militant democracy’; freedom of religion; the right to respect for private and family life; equality and non-discrimination. Mental health and human rights. Terrorism, security and states of emergency; ‘social learning’. Anomalous zones.

20 hours of seminars in the MT. 20 hours of seminars in the LT. 2 hours of seminars in the ST.

Students will be expected to produce 1 essay in the MT and 1 essay in the LT.

For European Convention law there exists no textbook which deals with the issues in adequate depth, but interested students may want to take a look at:

Harris, O’Boyle and Warbrick, Law of the European Convention on Human Rights 2nd  edn (OUP, 2009) for an overview. For the more theoretical aspects of the course, see K. Moller’s The Global Model of Constitutional Rights (OUP 2012). For the second term, C. Gearty’s book Principles of Human Rights Adjudication (2004) is a good starting point for further analysis but now rather dated. See the same author’s Civil Liberties (OUP, 2007), Liberty and Security (Polity, 2013), and A Kavanagh, Constitutional Review under the UK Human Rights Act  (CUP,  2009).

In both terms, in-depth engagement with the primary materials and active participation in the seminars is essential for successful completion of the course.

Exam (100%, duration: 3 hours) in the main exam period.