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Prof Kai Moller

Additional Teachers: 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.

The course provides a challenging introduction to human rights law and builds on the knowledge that students have acquired in Public Law in year one. The first term starts by focusing 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, the right to respect for private life, and freedom from torture and inhuman or degrading treatment or punishment. The first half of the second termdeals with more theorectical issues and introduces the students to theories of rights, the debate about the justification of judicial review, and the culture of justification.  In the second half of Lent Term, the focus shifts to the UK Human Rights Act, considering the common law approach to liberty and then analysing in depth how the Human Rights Act impacts on the protection of civil liberties and human rights in this area. The 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.  In evitably in the current political climate, the future of the Human Rights Act is also considered.

The goal of the course is to enable students to critically assess the European Court of Human Rights’ 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 frameworks, theoretical aspects of human rights 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. 

The teaching of this course is mainly case based. To complete it successfully, students must prepare for each class by reading and thinking through the relevant cases; the classes 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 European Convention on Human Rights and the European Court of Human Rights; proportionality, the margin of appreciation, the living instrument doctrine, emerging consensus, negative and positive obligations. 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. Theories of rights: rights as trumps and rights as principles. The debate about the justification of judicial review. The culture of justification and the right to justification. 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. 

This course will have a minimum of two hours of teaching content each week in Michaelmas Term and Lent Term. This course includes a reading week in Weeks 6 of Michaelmas Term and Lent Term.  There will be a revision class in Summer Term.

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

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

Open-book Exam (100%, duration: 3.5 hours) in the summer exam period.