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INDIVIDUAL AND THE STATE, 2013-2014

BASIC MODULE INFORMATION

(1) Introduction

Welcome to the Individual and the State course, which we hope you will find demanding but
enjoyable. The course aims to give you a critical understanding of those aspects of the UK
legal order that govern the basic relationship between the individual and the state, in
particular the protection of the fundamental rights of citizens under the Human Rights Act,
and their ability to challenge unlawful state action. Youll find that this is a controversial area
of law that is often in the news. For example, the Coalition Government reviewed the Human
Rights Act with a view to considering whether it should be replaced with a British Bill of
Rights. In the run-up to the 2015 General Election senior Conservatives are stating that the
Human Rights Act should be repealed to be replaced by a new Bill of Rights, and that the
possibility of withdrawal from the European Convention on Human Rights should be on the
table.

The I & S module is very closely linked to the UK Constitutional Law module in many
institutions the topics covered in each are taught as one module called Public Law or
Constitutional and Administrative Law. Broadly speaking, UK Constitutional Law is about
the sources and division of power between the three branches of government that is, the
legislature, executive and judiciary while the Individual and the State module is about how
the coercive power of the State particularly actions that invade human rights can be
challenged by the individual. Your lecturers and tutors will draw out the links between the
topics but you should think of the two courses as being related from the outset.

The convenor of this module is Professor Helen Fenwick; her room is on the first floor of the
Law School building and her e-mail address is [email protected]. Lectures will be
given by Professor Helen Fenwick (on the European Convention on Human Rights), by Dr
Williams (on the Human Rights Act 1998) and by Mr Alan Greene (on Judicial Review). Dr
Williams email address is [email protected]; Mr Greenes is
[email protected]. Tutorials will be taken by Mr Greene, Ms Ruth Houghton, Mr
Ben Warwick, Mr Daniel Lowe, Ms Jane Rooney and Mr Joshua Jowitt. Contact details for
all course tutors are on Durham University Online (DUO) (on which see below).

This document includes an outline of the course, and other important information about the
course as well as some supporting materials, explained below. Please read these
introductory materials as soon as possible. You should also read the law Undergraduate
Handbook thoroughly and keep it handy to refer to if you have queries.

As a reminder, the academic terms at Durham are referred to as follows: first term
Michaelmas; second term Epiphany; third term Easter. Teaching weeks run from Monday
to Friday.

(2) Using DUO

This course is being run in part via DUO Durham University Online which, as the name
suggests, is an online teaching and learning resource. You can access it from any computer
connected to the internet. It is essential that you consult it regularly as all announcements,
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etc will be posted there. Log in to DUO at http://duo.dur.ac.uk/webapps/login using
your ITS username and password. When you log in to DUO, you will find this course under
My Courses; click on Individual and the State to enter this course and you will find the
following buttons on the side Panel:
Announcements (self-explanatory);
Course Information the information given in this handbook;
Staff Information which gives contact details, office hours etc for everyone teaching on
the course;
Course Documents where you will the find documents in the Public Law Materials pack
- Glossary of Terms, Comparative Constitutional materials (see below), the Tutorial
Sheets and the Lecture Handouts, which will be made available before the relevant
lecture. Whilst you have hard copies of the tutorial sheets as part of the hand-outs for use
in tutorials, when doing your tutorial preparation, you should always consult the online
versions, because they may contain links to online materials essential for your tutorial
preparation; we may also have to update the tutorials in response to legal developments
the updated version will only be available on DUO;
Assignments this gives the essay titles and also a link to the guidance on essay writing
in the Undergraduate Handbook;
Discussion Board - a chat-room where you can raise questions and discuss issues about
the course topics online, anonymously if you wish;
External Links important! Here you can link directly to a number of very important
web-sites and some specific materials the course will require you to read.
Module Evaluation you will use this at the end of the module to give us feedback.
Tutorial Lists this tab shows you a complete list of the tutorial groups, the students in
each one, the tutor and details of their meeting times. It allows you to communicate with
people in your tutorial group via email without knowing their email addresses.


(3) Introductory reading for the course

The Law School will have sent you a description of this course, along with your other first
year courses and some suggestions for preliminary reading, which we hope you have had
time to undertake. Students without a basic level of knowledge about how the British system
of Government operates will find it very useful to acquire a basic understanding of that
system and the terminology associated with it. This particularly applies to overseas students,
for obvious reasons, but may also apply to home students who have never followed politics in
this country. In order to help with this problem, the UK Constitutional course pack contains a
very basic guide to the British political and constitutional system. Please read it as soon as
possible, if you feel at all unsure in this area. To help with terminology, there is in addition a
glossary of terms, which appears in the Public Law Materials booklet. Please keep this
handy to refer to in lectures and seminars, but don't be embarrassed to ask if one of your
tutors or another student uses a term which is unfamiliar. Since the teaching on this course
will make use of comparisons with the constitutional arrangements of other countries, this
booklet also includes a paper introducing you to some of these comparative themes. You will
find it useful to refer to this as and when we cover the topics it deals with.

We would also recommend you to start, if you do not already do so, to read a quality
newspaper regularly, watch the news (especially Channel 4 News or BBC2 Newsnight) or
listen to news and current affairs programmes on Radio 4. We will often be dealing with
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items which are in the news and we will expect you to follow unfolding stories with a human
rights aspect of which there will be many yourselves.

(4) Books for the course

The core text for the course, which you need to buy, is H Fenwick and G Phillipson Public
Law and Human Rights: Text, Cases and Materials (3rd ed, 2010, Routledge).

You will also need to refer to Harris, OBoyle, Warbrick and Bates, Law of the European
Convention on Human Rights (2
nd
edn, 2009). You will be buying R Masterman and C
Murray Exploring Constitutional and Administrative Law (2013) for the UK Constitutional
Law module. Some parts of that text are also relevant for parts of this course. Reading for
each of your tutorials on this course will be mainly from H Fenwick and G Phillipson Public
Law and Human Rights: Text, Cases and Materials but either or both of the other two books
mentioned will be referred to; also a number of other texts will be referred to throughout the
year, on the lecture hand-outs.

(5) The lectures

There will be one hour of lectures every week for the first two terms on Wednesdays at 9.00
am in W103 (the Appleby Lecture theatre in the Physics Department near the Law School).
If there are any changes to this you will be notified by an announcement on DUO.

Lecture handouts

Lecture handouts on a particular topic will be distributed at or before the first lecture that
deals with that topic. Normally the handouts will be available beforehand and you will be
notified via DUO that they are available and where to pick them up. You need to make sure
that you pick them up before the lecture - the lecturer will bring a few extra copies to the
lecture but not enough for the whole class. These handouts will give a detailed reading list for
the particular topic and full references for all cases, articles etc. referred to in the lecture. The
handouts are merely the bones of the lecture, and what we will say in the lectures will put
flesh on the bones. Lecture handouts will also be obtainable from DUO (see above).

Each lecture handout will include essential and further reading. A wide range of reading will
be suggested for those who wish to read extensively within a particular topic and also to
provide a range of alternatives for consultation as to particular issues, cases or statutory
provisions. You are advised to read as much as possible, but not to expect to read everything
on the lecture handouts. The tutorial topics will be included on the lecture hand-outs and
essential and recommended reading will accompany each tutorial. The essay topics will also
be included on specific lecture hand-outs and the relevant lecturer will draw your attention to
them, and to the essay deadline (see below). The tutorial and essay topics will also be
available on DUO as indicated.

(6) The Tutorials

There will be four tutorials in total two in Michaelmas Term and two in Epiphany Term.
Tutorials will be held in the last four to five weeks of each term, so that the material you will
discuss in them will already have been covered in the lectures and you will have time to
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cover the reading needed in the tutorial as well as reading relevant to topics covered in the
lectures. You will sign up for your tutorial groups on DUO yourselves you will be notified
when the system is ready for you to do this. The groups are small normally of 8 students.
The tutorials are compulsory. If you miss a tutorial due to illness you must let the Law School
(reception) know in advance and you should ask your tutor for permission to attend a later
tutorial. If it is too late to do so, you should attend your tutors office hours (two hours
weekly as posted on DUO) to go over your work for the tutorial.

Conscientious and thorough preparation for tutorials is essential if you are to derive the
maximum benefit from them, and you should analyse and research the questions on the sheet
as if you were setting out to produce a piece of written work. You should read at least the
essential set reading set for the tutorial (on the lecture hand-outs) and may be asked to
leave the tutorial if it becomes apparent that you have not. Do as much of the
recommended reading as you can.

Your response to the tutorial itself is also important. Many students like to take notes in
tutorials; some do not. This is a matter for you. However, if you find it useful to take notes
you should ensure that your note-taking does not to occupy you to the extent that you
take no active part in the proceedings. Tutorials are not lectures and they are not there
primarily for you to take notes. Obviously, you need to listen and pay attention, but you
should also be prepared to contribute. Tutorials have two very important functions. The first
is to allow you to improve your understanding of the law, through engaging interactively with
both your tutor and other students. So even if you are very confused about the area of law
under discussion, you can always ask a question and this is a good way to participate.

The second important function of tutorials is to allow you to develop your oral skills in
dealing with legal concepts and arguments. In practice, lawyers spend a great deal of time
talking about the law, whether that is in advising a client, interviewing a witness, negotiating
with the other side to a legal transaction or litigation, or of course, making submissions in
court. It is therefore essential that you start to learn, as early as possible, how to put forward
your understanding of the law verbally, and to engage in (polite!) argument about it with your
tutor and other students. While writing good essays and exam answers will allow you to
obtain a good degree, it will never on its own make you a good lawyer, or indeed a skilled
professional of any sort.

In this sense, your participation in tutorials is the most important thing that you will do
in your course. Further, when writing references for training contracts, pupillages and
even vacation placements, staff are normally asked to comment on a students
performance in tutorials. If you are very quiet in tutorials or not properly prepared, we
will find it harder to give you a good reference.

(7) Essays

Essay writing is a key teaching and learning tool. Care is taken to return essays quickly
enough and with sufficient comments to enable students consciously to develop their essay
writing techniques. You can expect to receive your essay back in the first week of the
new term (you will usually submit it at the end of the previous term) or within four weeks of
submission. You will be given one written assignment per term in the first two terms. Think
about what the question is asking and how to set about answering it, as well as thinking about
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the substantive content. Take heed of any comments when your essay is returned. They are
valuable in helping you to improve your technique.

1. Two items of written work must be submitted by each student, one in each of the first
two terms.
2. Essays should be typed or preferably word-processed.
3. Your written work should be 1,500-2,000 words in length, including footnotes but
excluding bibliography.
4. ALL essay course work MUST be properly cited. Full advice and guidance on how to
do this may be found on the Law Student Study Skills pages on DUO. On the
Individual and the State course, essays should use the standard referencing system
used by the Law School - The Oxford Standard Citation of Legal Authorities
(OSCOLA), which is available in full on the above DUO pages. As the
Undergraduate Handbook makes clear, a failure to reference your essay
properly will result in your losing marks. Include also a full bibliography at the
end of the essay, listing all works used in the preparation of the essay even if they
have not been specifically cited.
5. Note in particular, that you MUST provide a reference where you are using a point or
argument made by another author; this must include the page number or numbers of
the relevant book or article. If you are using the same wording as another author,
even if it is just a few words, you MUST use quotation marks AND a full reference.
Failure to comply with these rules may be treated as plagiarism cheating and
dealt with severely.

6. Submission arrangements

The work must be submitted on or before the submission date. The essay must be
clearly marked with the name of your tutor that is the person who takes your
tutorial groups.
Deadlines are strictly enforced, and failure to hand work in on time will lead to a
penalty being awarded. Essays which are late will be returned unmarked. The only
exceptions to this is if an extension has been agreed because of illness or other serious
personal difficulties, or if you have handed in an essay late because of illness and
submit with it a self-certification signed by your College Senior Tutor (for details, see
the Undergraduate Handbook at D.4). If you need an extension please approach
Professor Fenwick, not your tutor.

(8) Exams and assessment

The module is assessed by means of a 2 hour 15 minutes unseen examination, in late May or
early June 2014. The essays you do during term time will not count towards your final mark
for the module. Please note that you must pass this module in order to proceed into
second year. If you fail it, and then fail the resit also, you will be required to withdraw
from Durham.

The first year at Durham is quite tough and a big step up intellectually from A-Levels. Make
sure you work consistently throughout the year.


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(9) Student Evaluation

The lecturer and tutors on the I & S course take the views and experience of students taking
the course very seriously. Student course evaluation forms will be available for completion
on DUO near the end of the course. Please take the time to fill these out in a thoughtful and
constructive manner; your comments matter and will be attended to.


(10) COURSE OBJECTIVES

By the end of this course students will be able to:

1. Identify and explain the basic principles governing aspects of the European
Convention on Human Rights (ECHR), the Human Rights Act and judicial review.
This will involve a grasp not only of black letter law but also of more basic
principles underpinning the notion of human rights and principles such as ultra vires;
this understanding will be given depth by the use of comparative materials relating to
the constitutional arrangements of other countries in order to foster a better
appreciation of the distinctive nature of the Human Rights Act in particular.

2. Relate different topics within the course to each other and understand how the same
basic principles run through and inform discussion of all the different areas of law and
practice discussed. In particular, given that the Human Rights Act gives domestic
effect to the ECHR, these two basic topics are closely interlinked and will be taught as
such.

3. Carry out research independently of lectures and seminars: this will involve not only
the traditional legal research skills of locating reading and summarising law reports,
articles and passages from textbooks, but also following contemporary controversies
over the Human Rights Act and the proposed British Bill of Rights in the media, and
considering how they relate to the particular topics being studied.

4. Engage in critical analysis of the principles represented by the ECHR and the system
for protecting and derogating from the rights it protects, at both the international and
domestic law levels. Students will also be able to consider in an informed way the
efficacy and legitimacy of the judge-made law of judicial review. Students will be
able to employ a variety of perspectives which will be indicated in lectures and
discussed in tutorials as a means of reflecting critically upon the areas of law
considered.

5. Recognise the ways in which the development of human rights and of judicial review
was influenced by a variety of political, economic and social factors and be able to
anticipate how changes in these factors in the future may result in changes to the
systems of rights protection and protection from unlawful government action which
we will study.

6. Deploy key oral skills: these will have been developed through participation in
discussion and debates in tutorials; particular emphasis will be placed upon the ability
to express oneself clearly and logically and to sustain a line of argument in the face of
opposition.
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(11) SYLLABUS

MICHAELMAS TERM

Part I The European Convention on Human Rights

Background and Operation of the ECHR System
Introduction to the concept of human rights from a legal perspective; consideration of the
context for the creation and development of the Council of Europe human rights architecture;
introduction and map of the structure of the European Court of Human Rights and its
enforcement mechanisms

Complaint Mechanisms and Admissibility
Outline of the process of bringing a complaint to the European Court of Human Rights;
outline and analysis of the admissibility requirements for individual complaints.

Outline of Protected Rights
An overview of the rights protected in the Convention and its Protocols in a very general
sense, allowing us to consider whether any families or categories of rights can be
identified within the Convention system.

Key Convention Principles
Consideration, with examples, of the operation and provenance of core Convention
principles, namely margin of appreciation, proportionality, evolutive interpretation, and
European Consensus with a view to developing a critical perspective on their operation.

Principles in Action: Article 10
Close analysis of aspects of Article 10, providing a case study advancing understanding of
the operation of key Convention principles in action.

Article 15 of the Convention the Derogation System
Introduction to the ways in which the ECHR deals with emergencies and the principle that
states may need to act more repressively in times of emergency than might usually be the
case and, furthermore, that human rights law ought to facilitate this within limits.
Consideration of the definition of an emergency in Article 15 (with comparison to some other
international human rights law definition), the concept of derogation, and the application
and operation of core Convention principles within an Article 15 context.

Conclusions: reforms of the Court; UK perspectives on the Convention; the Human
Rights Act



Part II giving domestic effect to the ECHR in the UK: the Human Rights
Act 1998

The historical position in the UK and the Bill of Rights Debate
Negative liberties; legislative protection and legislative inroads; the common law and
influence of the ECHR; the Bill of Rights (BoR) debate: theoretical positions and
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practicalities; Conservative and leftist objections; the judiciary; possible models for a BoR:
Canada, the U.S.

The Human Rights Act 1998 a basic outline
The basic scheme of the Act the White Paper, parliamentary sovereignty; the Act in
summary and how it compares internationally.

The HRA the interpretative and declaratory functions
Pre-legislative scrutiny; the interpretative duty (s 3(1)); the position of Convention
jurisprudence; declarations of incompatibility.


EPIPHANY TERM

The HRA scope of application, horizontality and remedies
Who is bound by the Act? The definition of public authority core and hybrid public
authorities; horizontal effect: the influence of the on private law; using Convention rights
as a sword and a shield.

The HRA evaluation and conclusions
The margin of appreciation in domestic courts; judicial deference to policy making;
evaluation and conclusions.


PART III: JUDICIAL REVIEW

The raison dtre for judicial review and a basic introduction
Perspectives on the purposes of judicial review and justifications for it; its role within the
constitution; basic principles of judicial review.

The prerequisites for judicial review
Amenability against whom can one apply for judicial review; standing; time limits;
permission; procedural exclusivity.

Grounds of Review I: Procedural Fairness and Bias
The rule against bias direct and indirect bias; the duty to act fairly when will it apply?; the
duty to act fairly content: notice, right to make representations; oral hearing; witnesses,
cross-examination and legal representation; right to reasons for a decision.

Grounds of Review II: Illegality
Simple illegality; error of law; failure to retain discretion; abuse of discretion irrelevant
considerations; improper purpose.

Grounds of Review III: Irrationality/substantive grounds
Frustration of substantive legitimate expectations; Wednesbury
unreasonableness/Irrationality; proportionality?