Dr Kai Moller

Additional Teachers: Professor Thomas Poole, Professor Conor Gearty.

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 and to General Course students.

This course is capped at 50.

The course provides a challenging introduction to human rights law. The first term starts by focusing on the UK Human Rights Act, setting out a theoretical perspective on civil liberties before considering the common law approach to liberty and then analyzing in depth how the Human Rights Act impacts on the protection of civil liberties and human rights in this area.  In the second half of the first term and the first half of the second, the focus shifts to 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, the right to respect for private life, and freedom from torture and inhuman or degrading treatment or punishment. The second term ends with a review of the interrelationship between the Human Rights Act and the Strasbourg system, and also deals with the extra-territorial reach of the Act and its impact on UK national security/anti-terrorism law.  The course builds on the knowledge that students have acquired in Public Law in year one. Note that 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 particular 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: Theoretical aspects of human rights and their judicial enforcement; 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 right to freedom from torture and inhuman or degrading treatment; freedom of expression; freedom of association and ‘militant democracy’; freedom of religion; the right to respect for private and family life.

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 4th edn (OUP, 2018) for an overview.

For the more theoretical aspects of the course, see Kai Möller’s The Global Model of Constitutional Rights (OUP 2012; paperback edition 2015). For the UK side, representative works include Conor Gearty, Civil Liberties (OUP, 2007), Tom Hickman, Public Law after the Human Rights Act (Hart, 2010),Aileen Kavanagh, Constitutional Review under the UK Human Rights Act (CUP, 2009), and (more recently) Conor Gearty, On Fantasy Island. Britain, Strasbourg and Human Rights (OUP, 2016).

Exam (100%, duration: 3 hours, reading time: 15 minutes) in the summer exam period.