unit 1: introduction to human
rights; absolute rights
Tags Complete
1. Introduction to the ECHR and the Human Rights Act
1.1 Background to the ECHR
1.2 Procedure
1.2.1 Two-stage process
1.2.2 Remedies
1.2.3 The Scope of the Convention
1.3 Absolute, Limited and Qualified Rights
1.4 Qualified Rights
1.4.1 Qualifications must be express
1.4.2 Qualifications must be prescribed by law (or be ‘in accordance with the law’)
1.4.3 Legitimate aims
1.4.4 Necessary in a democratic society
1.4.5 Example of qualifications at work
1.5 Protection from discrimination
1.6 Derogations
2. The Human Rights Act 1998
2.1 An Overview of the Act
2.2 Method of Incorporation of Convention Rights and Interpretation of Domestic Legislation
2.3 Declaration of Incompatibility
2.4 Remedial Orders
2.5 Acts of Public Authorities
2.6 Enforcement Against Private Individuals
2.7 Section 6 and Delegated Legislation
2.8 Standing
2.9 Damages for Breach of Convention Rights
2.10 Lord Steyn, ‘Democracy, the Rule of Law and the Role of Judges’ [2006] 3 EHRLR
243-53.
3. Exploring Case Law
4. Absolute and Limited Rights
5. Article 2 - Right to Life
5.1 Introduction
unit 1: introduction to human rights; absolute rights 1
, 5.2 Scope of Article 2
5.2.1 Embryos/foetuses
5.2.2 The right to die
5.2.3 Failure to prosecute
5.3 Obligation on the State to Investigate
5.3.1 The procedural limb of Article 2
6. Article 3 - Torture, Inhuman or Degrading Treatment or Punishment
6.1 Scope of Article 3
6.2 Asylum Cases
6.3 Deportation Cases
7. Article 4 - Slavery
7.1 Introduction
7.2 Slavery
7.3 Servitude
7.4 Forced or Compulsory Labour
1. Introduction to the ECHR and the
Human Rights Act
1.1 Background to the ECHR
The ECHR is distinct from EU law, with its own institutions and procedures.
The Convention was adopted in 1950 and was drafted by the Council of Europe, an
international organisation that was formed after World War Two, in an attempt to
establish a common European heritage.
In adopting the Convention the member states of the Council accepted an obligation
to ‘accept the principles of the rule of law and of the enjoyment by all persons within
its jurisdiction of human rights and fundamental freedoms’.
Thus, signatory states must respect the human rights of all those who are within
their jurisdiction, regardless of their nationality.
The Convention was a response to the serious human rights violations Europe
had witnessed during and before the War, and also to the spread of Communism
into Central and Eastern Europe after the War.
The idea was that the Convention would be a statement of the fundamental
principles of liberty accepted by the countries of Western Europe, and would
prevent future violations of human rights.
unit 1: introduction to human rights; absolute rights 2
, The Convention is an International Treaty which has now been signed by 47
European states; indeed Belarus is the only European state that has not signed it.
The UK ratified the Treaty in 1951.
Thus, the UK is bound as a matter of international law to comply with the
Convention, by ensuring that UK law gives effect to a list of rights set out in the
ECHR.
If the UK breaches the Convention, it is possible for other states who are parties
to bring proceedings before the European Court of Human Rights (ECtHR) in
Strasbourg, in addition to individual applications to enforce Convention rights.
Judgments of the ECtHR are binding on the UK as a matter of international law.
1.2 Procedure
There are two ways in which proceedings may commence:
a. State applications.
If the UK is in violation of the Convention, proceedings may be brought
against the UK by another signatory state.
For example, Ukraine has brought nine inter-state applications against the
Russian Federation. Recent cases concern the shooting down of a
Malaysian airlines flight over Ukraine, and allegations by Ukraine that Russia
is authorising targeted assassination operations against perceived
opponents of the Russian state in both Russia and on the territory of other
states.
b. Individual petitions to the ECtHR.
Individuals who allege that their Convention rights have been breached as a
result of UK law may start their own proceedings against the UK in
Strasbourg.
However, it must be shown that any domestic remedies which exist have first
been exhausted.
Furthermore, there is a time limit. From 1 August 2021 the petition must be
made within four months of the final UK decision (the previous limit was six
months). The final UK decision will usually be the decision of the highest UK
court having jurisdiction.
Note: Most cases do not proceed to a full hearing.
unit 1: introduction to human rights; absolute rights 3
, It is important to appreciate that the ECHR is a ‘living instrument’.
It has to be generously interpreted in the light of its aim of protecting human
rights, the understanding of which may change with evolving social conditions.
Thus, the content of the rights may change over time as the ECtHR reinterprets
the ECHR to keep it attuned to changing values.
1.2.1 Two-stage process
There are two main stages in cases brought before the Court:
i. the admissibility stage; and
ii. the merits stage.
A single-judge formation will declare an application inadmissible should
inadmissibility be obvious from the outset; there is no right to appeal against its
decisions.
Cases that are covered by well-established case law of the Court will be allocated to
a three-member Committee, which will rule on admissibility and, where the case is
admissible, give a final decision or judgment.
Other cases will be heard by a Chamber of seven judges, which will rule on
admissibility and give judgment by a majority.
The Chamber’s judgment will become final only after three months, during which
the applicant or state party may ask for the case to be referred to the Grand
Chamber for fresh consideration.
If the request for referral is accepted by the panel of the Grand Chamber, the
Grand Chamber will reconsider the case and hold a public hearing if necessary.
The Grand Chamber judgment will be final.
1.2.2 Remedies
Possible remedies include the court awarding compensation or requiring the state to
change its law.
However, individual decisions are only binding as a matter of international law under
the Convention and have no direct binding force in domestic law.
The court relies on the willingness of states to abide by the Convention and
accept its judgments.
unit 1: introduction to human rights; absolute rights 4
, Although the UK usually complies with judgments against it, in December 2020
the Council of Europe passed a resolution which expressed ‘profound concern’
at the UK Government’s failure to enforce judgments of the ECtHR involving
security force killings and suspected collusion cases in Northern Ireland. In these
judgments, the ECtHR had found procedural violations of Article 2 (the right to
life) of the ECHR due to various shortcomings in the investigations into the
deaths.
The Committee of Ministers of the Council of Europe is responsible for ensuring that
states comply with judgments of the ECtHR.
1.2.3 The Scope of the Convention
Article 8 – right to respect for private life. If A
1. The police monitor A’s use of the Internet
is charged with an offence arising from his
and find that he is distributing pornographic
use of the Internet, Article 10 – freedom of
materials.
expression.
2. B is killed as a result of troops using plastic
Article 2 – right to life.
bullets to control a riot.
Article 3 – prohibition of degrading treatment
3. An Act of Parliament introduces birching as
(punishment by birching in the Isle of Man
a punishment for criminal offences. C is
held to infringe the Convention in Tyrer v UK
birched by a prison officer.
(1978) 2 EHRR 1).
4. An Act of Parliament permits detention of
suspected offenders for up to six days before
Article 5 – right to liberty and security of the
they are charged and brought before the
person (Brogan v UK (1988) 11 EHRR 117).
magistrates. D is detained for seven days by
the police without charge.
Article 6 – right to a fair trial (refusal of public
5. Parliament abolishes public funding of legal funding to someone charged with perjury but
services in criminal cases. E lacks the money without means to pay for representation held
to defend himself against a criminal charge. to infringe the Convention in Granger v UK
(1990) 2 EHRR 528).
6. A local authority passes a byelaw Article 10 – freedom of expression, and
preventing F, an anti-nuclear protester, from Article 11 – freedom of assembly and
camping in the vicinity of an Atomic Weapons association (see Tabernacle v Secretary of
Establishment. State for Defence [2009] EWCA Civ 23).
7. In order to enable a new railway line to be Article 1, Protocol 1 – right to peaceful
built, Parliament passes an Act which enables enjoyment of possessions.
houses to be demolished without
compensation for the owners. J owns a house
unit 1: introduction to human rights; absolute rights 5
, which the railway company is proposing to
demolish.
In each case where the act of the public authority is authorised by an Act of
Parliament, the victim of a breach would (in the domestic courts) only be able to
obtain a declaration of incompatibility, rather than a decision that the public authority
has acted unlawfully.
1.3 Absolute, Limited and Qualified Rights
Not all Convention rights are absolute.
Sometimes a public authority may be able to show that its action is within one of
the limitations or qualifications permitted by the Article in question, and is
therefore lawful.
Convention rights are normally divided into three types:
i. Absolute rights: These rights can never be interfered with in any circumstances
whatsoever. States must uphold them at all times.
ii. Limited rights: These rights can only be limited in clearly defined and finite
situations.
iii. Qualified rights: These rights require a balance between the rights of the
individual and the wider public interest, and so may be interfered with to protect
an important general interest or the rights of others.
The distinction between absolute and limited rights can sometimes be a difficult one
to draw.
Rights which list exceptions which help to define the rights are absolute
rights, as any conduct which falls within an exception does not constitute an
interference with the right in question; and
Rights which list specific and finite situations in which they can be
interfered with are limited rights as there are set circumstances where an
interference is permissible.
The distinction between absolute and limited rights is not made in the Convention
itself, and there is no authoritative list.
Generally speaking, Articles 2–7 (absolute and limited rights) cover the most
fundamental human rights and contain either no exceptions whatsoever or narrow
express exceptions, and Articles 8–11 and Article 1 of Protocol 1 cover qualified
rights which can be overridden in the public interest.
unit 1: introduction to human rights; absolute rights 6
rights; absolute rights
Tags Complete
1. Introduction to the ECHR and the Human Rights Act
1.1 Background to the ECHR
1.2 Procedure
1.2.1 Two-stage process
1.2.2 Remedies
1.2.3 The Scope of the Convention
1.3 Absolute, Limited and Qualified Rights
1.4 Qualified Rights
1.4.1 Qualifications must be express
1.4.2 Qualifications must be prescribed by law (or be ‘in accordance with the law’)
1.4.3 Legitimate aims
1.4.4 Necessary in a democratic society
1.4.5 Example of qualifications at work
1.5 Protection from discrimination
1.6 Derogations
2. The Human Rights Act 1998
2.1 An Overview of the Act
2.2 Method of Incorporation of Convention Rights and Interpretation of Domestic Legislation
2.3 Declaration of Incompatibility
2.4 Remedial Orders
2.5 Acts of Public Authorities
2.6 Enforcement Against Private Individuals
2.7 Section 6 and Delegated Legislation
2.8 Standing
2.9 Damages for Breach of Convention Rights
2.10 Lord Steyn, ‘Democracy, the Rule of Law and the Role of Judges’ [2006] 3 EHRLR
243-53.
3. Exploring Case Law
4. Absolute and Limited Rights
5. Article 2 - Right to Life
5.1 Introduction
unit 1: introduction to human rights; absolute rights 1
, 5.2 Scope of Article 2
5.2.1 Embryos/foetuses
5.2.2 The right to die
5.2.3 Failure to prosecute
5.3 Obligation on the State to Investigate
5.3.1 The procedural limb of Article 2
6. Article 3 - Torture, Inhuman or Degrading Treatment or Punishment
6.1 Scope of Article 3
6.2 Asylum Cases
6.3 Deportation Cases
7. Article 4 - Slavery
7.1 Introduction
7.2 Slavery
7.3 Servitude
7.4 Forced or Compulsory Labour
1. Introduction to the ECHR and the
Human Rights Act
1.1 Background to the ECHR
The ECHR is distinct from EU law, with its own institutions and procedures.
The Convention was adopted in 1950 and was drafted by the Council of Europe, an
international organisation that was formed after World War Two, in an attempt to
establish a common European heritage.
In adopting the Convention the member states of the Council accepted an obligation
to ‘accept the principles of the rule of law and of the enjoyment by all persons within
its jurisdiction of human rights and fundamental freedoms’.
Thus, signatory states must respect the human rights of all those who are within
their jurisdiction, regardless of their nationality.
The Convention was a response to the serious human rights violations Europe
had witnessed during and before the War, and also to the spread of Communism
into Central and Eastern Europe after the War.
The idea was that the Convention would be a statement of the fundamental
principles of liberty accepted by the countries of Western Europe, and would
prevent future violations of human rights.
unit 1: introduction to human rights; absolute rights 2
, The Convention is an International Treaty which has now been signed by 47
European states; indeed Belarus is the only European state that has not signed it.
The UK ratified the Treaty in 1951.
Thus, the UK is bound as a matter of international law to comply with the
Convention, by ensuring that UK law gives effect to a list of rights set out in the
ECHR.
If the UK breaches the Convention, it is possible for other states who are parties
to bring proceedings before the European Court of Human Rights (ECtHR) in
Strasbourg, in addition to individual applications to enforce Convention rights.
Judgments of the ECtHR are binding on the UK as a matter of international law.
1.2 Procedure
There are two ways in which proceedings may commence:
a. State applications.
If the UK is in violation of the Convention, proceedings may be brought
against the UK by another signatory state.
For example, Ukraine has brought nine inter-state applications against the
Russian Federation. Recent cases concern the shooting down of a
Malaysian airlines flight over Ukraine, and allegations by Ukraine that Russia
is authorising targeted assassination operations against perceived
opponents of the Russian state in both Russia and on the territory of other
states.
b. Individual petitions to the ECtHR.
Individuals who allege that their Convention rights have been breached as a
result of UK law may start their own proceedings against the UK in
Strasbourg.
However, it must be shown that any domestic remedies which exist have first
been exhausted.
Furthermore, there is a time limit. From 1 August 2021 the petition must be
made within four months of the final UK decision (the previous limit was six
months). The final UK decision will usually be the decision of the highest UK
court having jurisdiction.
Note: Most cases do not proceed to a full hearing.
unit 1: introduction to human rights; absolute rights 3
, It is important to appreciate that the ECHR is a ‘living instrument’.
It has to be generously interpreted in the light of its aim of protecting human
rights, the understanding of which may change with evolving social conditions.
Thus, the content of the rights may change over time as the ECtHR reinterprets
the ECHR to keep it attuned to changing values.
1.2.1 Two-stage process
There are two main stages in cases brought before the Court:
i. the admissibility stage; and
ii. the merits stage.
A single-judge formation will declare an application inadmissible should
inadmissibility be obvious from the outset; there is no right to appeal against its
decisions.
Cases that are covered by well-established case law of the Court will be allocated to
a three-member Committee, which will rule on admissibility and, where the case is
admissible, give a final decision or judgment.
Other cases will be heard by a Chamber of seven judges, which will rule on
admissibility and give judgment by a majority.
The Chamber’s judgment will become final only after three months, during which
the applicant or state party may ask for the case to be referred to the Grand
Chamber for fresh consideration.
If the request for referral is accepted by the panel of the Grand Chamber, the
Grand Chamber will reconsider the case and hold a public hearing if necessary.
The Grand Chamber judgment will be final.
1.2.2 Remedies
Possible remedies include the court awarding compensation or requiring the state to
change its law.
However, individual decisions are only binding as a matter of international law under
the Convention and have no direct binding force in domestic law.
The court relies on the willingness of states to abide by the Convention and
accept its judgments.
unit 1: introduction to human rights; absolute rights 4
, Although the UK usually complies with judgments against it, in December 2020
the Council of Europe passed a resolution which expressed ‘profound concern’
at the UK Government’s failure to enforce judgments of the ECtHR involving
security force killings and suspected collusion cases in Northern Ireland. In these
judgments, the ECtHR had found procedural violations of Article 2 (the right to
life) of the ECHR due to various shortcomings in the investigations into the
deaths.
The Committee of Ministers of the Council of Europe is responsible for ensuring that
states comply with judgments of the ECtHR.
1.2.3 The Scope of the Convention
Article 8 – right to respect for private life. If A
1. The police monitor A’s use of the Internet
is charged with an offence arising from his
and find that he is distributing pornographic
use of the Internet, Article 10 – freedom of
materials.
expression.
2. B is killed as a result of troops using plastic
Article 2 – right to life.
bullets to control a riot.
Article 3 – prohibition of degrading treatment
3. An Act of Parliament introduces birching as
(punishment by birching in the Isle of Man
a punishment for criminal offences. C is
held to infringe the Convention in Tyrer v UK
birched by a prison officer.
(1978) 2 EHRR 1).
4. An Act of Parliament permits detention of
suspected offenders for up to six days before
Article 5 – right to liberty and security of the
they are charged and brought before the
person (Brogan v UK (1988) 11 EHRR 117).
magistrates. D is detained for seven days by
the police without charge.
Article 6 – right to a fair trial (refusal of public
5. Parliament abolishes public funding of legal funding to someone charged with perjury but
services in criminal cases. E lacks the money without means to pay for representation held
to defend himself against a criminal charge. to infringe the Convention in Granger v UK
(1990) 2 EHRR 528).
6. A local authority passes a byelaw Article 10 – freedom of expression, and
preventing F, an anti-nuclear protester, from Article 11 – freedom of assembly and
camping in the vicinity of an Atomic Weapons association (see Tabernacle v Secretary of
Establishment. State for Defence [2009] EWCA Civ 23).
7. In order to enable a new railway line to be Article 1, Protocol 1 – right to peaceful
built, Parliament passes an Act which enables enjoyment of possessions.
houses to be demolished without
compensation for the owners. J owns a house
unit 1: introduction to human rights; absolute rights 5
, which the railway company is proposing to
demolish.
In each case where the act of the public authority is authorised by an Act of
Parliament, the victim of a breach would (in the domestic courts) only be able to
obtain a declaration of incompatibility, rather than a decision that the public authority
has acted unlawfully.
1.3 Absolute, Limited and Qualified Rights
Not all Convention rights are absolute.
Sometimes a public authority may be able to show that its action is within one of
the limitations or qualifications permitted by the Article in question, and is
therefore lawful.
Convention rights are normally divided into three types:
i. Absolute rights: These rights can never be interfered with in any circumstances
whatsoever. States must uphold them at all times.
ii. Limited rights: These rights can only be limited in clearly defined and finite
situations.
iii. Qualified rights: These rights require a balance between the rights of the
individual and the wider public interest, and so may be interfered with to protect
an important general interest or the rights of others.
The distinction between absolute and limited rights can sometimes be a difficult one
to draw.
Rights which list exceptions which help to define the rights are absolute
rights, as any conduct which falls within an exception does not constitute an
interference with the right in question; and
Rights which list specific and finite situations in which they can be
interfered with are limited rights as there are set circumstances where an
interference is permissible.
The distinction between absolute and limited rights is not made in the Convention
itself, and there is no authoritative list.
Generally speaking, Articles 2–7 (absolute and limited rights) cover the most
fundamental human rights and contain either no exceptions whatsoever or narrow
express exceptions, and Articles 8–11 and Article 1 of Protocol 1 cover qualified
rights which can be overridden in the public interest.
unit 1: introduction to human rights; absolute rights 6
