Admin Revision
UNIT 1: INTRODUCTION TO HUMAN RIGHTS; ABSOLUTE
RIGHTS
1.1 Background to the ECHR
Distinct from EU Law: Own institutions and procedures.
Adoption: 1950 by the Council of Europe post-WWII to promote human rights
and rule of law.
Obligations of Member States:
o Respect human rights for all within jurisdiction.
o Applies regardless of nationality.
Purpose: Response to WWII atrocities and prevention of future violations.
Membership: Signed by 47 European states; Belarus is the only non-signatory.
UK’s Role:
o Ratified in 1951, binding under international law.
o Judgments by the ECtHR are binding internationally
o If UK breaches convention- possible for other states to bring proceedings
before ECtHR and individual applications to enforce Convention rights
1.2 Procedure
Two Types of Applications:
o State Applications: Brought by one state against another (e.g., Ukraine
vs. Russia).
o Individual Petitions:
Individuals can petition ECtHR after exhausting domestic remedies.
Time Limit: Four months from the final UK decision (since August
2021). Decision will usually be the decision of the highest UK court
having jurisdiction
Most cases don’t proceed to a full hearing
ECHR as a Living Instrument:
o Rights evolve with societal changes.
o ECtHR interpretations adapt to contemporary values.
Two-stage Process:
1. Admissibility Stage:
Single-judge formation dismisses clearly inadmissible cases (no right
to appeal)
Three-member Committees handle cases with established
precedent.
2. Merits Stage:
Other cases- heard by a Chamber of seven judges; judgments
finalized after three months unless referred to the Grand Chamber
(at request of applicant/state party)
Remedies:
o Compensation or law changes.
o Binding internationally but rely on state compliance (not directly binding
on domestic law) (e.g., UK criticism over Article 2 violations in Northern
Ireland)
o The Committee of Ministers of the Council of Europe is responsible for
ensuring that states comply with judgements of the ECTHR
1.2.3 The Scope of the Convention
Examples of Convention Rights:
o Article 2 (Right to Life): E.g., deaths from plastic bullets (troop use).
o Article 3 (Freedom from Degrading Treatment): Birching (Tyrer v UK).
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o Article 5 (Right to Liberty and security of the person): Unlawful
detention beyond legal limits (Brogan v UK).
o Article 6 (Right to Fair Trial): Denial of legal aid (Granger v UK).
o Article 8 (Respect for Private Life): Surveillance issues.
o Article 10 (Freedom of Expression); Article 11 (Freedom of
assembly)Protest restrictions (Tabernacle v Secretary of State for
Defence).
o Article 1 of Protocol 1 (Peaceful Enjoyment of Possessions):
Uncompensated property demolitions.
Where public authority id authorised by an Act of Parliament- victim of a breach
(in domestic courts) would only be able to obtain a declaration of
incompatibility, rather than a decision that the public authority acted unlawfully
1.3 Absolute, Limited, and Qualified Rights
Types of Rights:
1. Absolute Rights:
Cannot be interfered with (e.g., Article 3: Freedom from torture),
state must uphold them at all times
2. Limited Rights:
Limited in specific, defined situations (e.g., Article 5: Lawful
detention).
3. Qualified Rights:
Balance individual rights with public interest (e.g., Article 8: Private
life).
Rights which list exceptions which help to define the rights- absolute rights
Rights which list specific and finite situations in which they can be interfered
with- limited rights
Key Articles:
o Absolute: Articles 2, 3, 4, 6 (fair trial), 7.
o Limited: Articles 5, 6 (public trial exceptions).
o Qualified: Articles 8–11, Article 1 of Protocol 1.
1.4.1 Qualifications Must Be Express
Restrictions on qualified rights must be expressly stated in the ECHR and used
for their prescribed purpose (Article 18).
Restrictions must:
o Be prescribed by law.
o Have a legitimate aim.
o Be necessary in a democratic society.
o Not be applied in a discriminatory way (Article 14).
Key Point:
o Article 14 does not provide a general right to freedom from discrimination;
it only ensures that rights and freedoms in the ECHR are secured without
discrimination.
1.4.2 Qualifications Must Be Prescribed by Law (or ‘in accordance with the
law’)
A government can rely on a Convention qualification only if the state’s laws
actively provide for it.
The law giving effect to the qualification can be written or unwritten.
The law must:
o Be accessible (published and available to the public).
o Be sufficiently precise to enable citizens to regulate their behaviour.
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Case Examples:
1. Malone v UK (1984):
o English law on telephone tapping was too vague to justify interference
with Article 8 rights.
2. R (on the application of Purdy) v DPP (2009):
o Lack of specific policy on prosecuting assisted suicide violated Article 8(2).
o The law was unclear, leaving individuals unable to predict prosecution
risks.
o The DPP later issued clear guidelines as a result.
1.4.3 Legitimate Aims
Qualifications must align with legitimate state aims specified in the Convention.
Common legitimate aims include:
o National security, public safety, or economic well-being (e.g. Article
8).
o Prevention of disorder or crime (e.g. Articles 8, 10).
o Protection of health or morals (e.g. Articles 8, 10).
o Protection of the rights or freedoms of others (e.g. Article 8).
o Prevention or disclosure of confidential information (e.g. Article
10).
o Maintaining judicial authority and impartiality (e.g. Article 10).
1.4.4 Necessary in a Democratic Society
Restrictions must be ‘necessary in a democratic society.’
This involves:
1. A pressing social need (not an absolute necessity).
2. Proportionality: The restriction must not go further than necessary to
achieve its aim.
3. A margin of appreciation for states to judge necessity based on their
context.
Case Examples:
1. R v Handyside (1976):
o UK obscenity laws upheld under Article 10 to protect public morals.
o The state was allowed a margin of appreciation to decide what public
interest required.
2. R v Dudgeon (1982):
o Criminalizing private homosexual conduct violated Article 8, as it was not
necessary in a democratic society.
1.4.5 Example of Qualifications at Work
Scenario: Rehana objects to an incinerator near her home under Article 8.
o Legal basis: The Waste Management Act 2012 qualifies Article 8 rights.
o Legitimate aim: The Act pursues the ‘economic well-being of the country.’
o Necessary in a democratic society: The proportionality test applies—could
a lesser interference achieve the same aim?
1.5 Protection from Discrimination (Article 14)
Article 14 ensures ECHR rights are applied without discrimination on grounds
such as sex, race, religion, or other status.
This is not a free-standing right; discrimination must affect the enjoyment of
another Convention right.
Covers both:
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o Direct discrimination: Treating someone less favourably due to a
protected characteristic.
o Indirect discrimination: Applying a neutral rule that disadvantages a
particular group.
1.6 Derogations
Article 15 allows states to derogate from the ECHR in:
1. Times of war.
2. Public emergencies threatening the life of the nation.
Non-derogable rights:
o Article 3 (torture, etc.).
o Article 4(1) (slavery).
o Article 7 (retrospective criminal offences).
o Article 2 (right to life), except for lawful acts of war.
UK Procedure (HRA 1998):
o Section 14: Sets a statutory process for enacting derogations.
o Section 1: Convention rights must be read subject to derogations.
Case Example:
A v Secretary of State for the Home Department (2005):
o Anti-terrorism derogation under Article 5 quashed for being
disproportionate.
o Led to changes in UK law (Prevention of Terrorism Act 2005).
2.1 Overview of the Act
Main Sections of the HRA 1998
1. Section 1: Incorporates and gives effect to Convention rights.
2. Section 2: Courts must “take into account” ECtHR judgments but are not bound
by them.
3. Section 3: Legislation must be interpreted to be compatible with Convention
rights “so far as it is possible to do so.”
o Applies to past and future legislation.
4. Section 4: Courts (High Court and above) can declare Acts of Parliament
incompatible with Convention rights.
5. Section 6: Public authorities (including courts) must not act incompatibly with
Convention rights unless acting under incompatible legislation.
6. Section 7: A victim of an unlawful act by a public authority may bring legal
proceedings or rely on Convention rights in existing proceedings.
7. Section 8: Courts may award damages for breaches of Convention rights if
“necessary to afford just satisfaction.”
8. Section 10: A fast-track process allows the Government to amend or repeal
legislation found incompatible with the ECHR through “remedial orders” if there
are compelling reasons to do so. Delegated legislation which has to be approved
by Parliament under the ‘affirmative procedure’
9. Section 19: Ministers must issue a statement of compatibility for new bills
or explain why they are proceeding despite incompatibility.
2.2 Method of Incorporation of Convention Rights
Refer to Sections 2 and 3:
o Courts must interpret Convention rights and domestic legislation
consistently with the ECHR wherever possible.
2.3 Declaration of Incompatibility
UNIT 1: INTRODUCTION TO HUMAN RIGHTS; ABSOLUTE
RIGHTS
1.1 Background to the ECHR
Distinct from EU Law: Own institutions and procedures.
Adoption: 1950 by the Council of Europe post-WWII to promote human rights
and rule of law.
Obligations of Member States:
o Respect human rights for all within jurisdiction.
o Applies regardless of nationality.
Purpose: Response to WWII atrocities and prevention of future violations.
Membership: Signed by 47 European states; Belarus is the only non-signatory.
UK’s Role:
o Ratified in 1951, binding under international law.
o Judgments by the ECtHR are binding internationally
o If UK breaches convention- possible for other states to bring proceedings
before ECtHR and individual applications to enforce Convention rights
1.2 Procedure
Two Types of Applications:
o State Applications: Brought by one state against another (e.g., Ukraine
vs. Russia).
o Individual Petitions:
Individuals can petition ECtHR after exhausting domestic remedies.
Time Limit: Four months from the final UK decision (since August
2021). Decision will usually be the decision of the highest UK court
having jurisdiction
Most cases don’t proceed to a full hearing
ECHR as a Living Instrument:
o Rights evolve with societal changes.
o ECtHR interpretations adapt to contemporary values.
Two-stage Process:
1. Admissibility Stage:
Single-judge formation dismisses clearly inadmissible cases (no right
to appeal)
Three-member Committees handle cases with established
precedent.
2. Merits Stage:
Other cases- heard by a Chamber of seven judges; judgments
finalized after three months unless referred to the Grand Chamber
(at request of applicant/state party)
Remedies:
o Compensation or law changes.
o Binding internationally but rely on state compliance (not directly binding
on domestic law) (e.g., UK criticism over Article 2 violations in Northern
Ireland)
o The Committee of Ministers of the Council of Europe is responsible for
ensuring that states comply with judgements of the ECTHR
1.2.3 The Scope of the Convention
Examples of Convention Rights:
o Article 2 (Right to Life): E.g., deaths from plastic bullets (troop use).
o Article 3 (Freedom from Degrading Treatment): Birching (Tyrer v UK).
,Admin Revision
o Article 5 (Right to Liberty and security of the person): Unlawful
detention beyond legal limits (Brogan v UK).
o Article 6 (Right to Fair Trial): Denial of legal aid (Granger v UK).
o Article 8 (Respect for Private Life): Surveillance issues.
o Article 10 (Freedom of Expression); Article 11 (Freedom of
assembly)Protest restrictions (Tabernacle v Secretary of State for
Defence).
o Article 1 of Protocol 1 (Peaceful Enjoyment of Possessions):
Uncompensated property demolitions.
Where public authority id authorised by an Act of Parliament- victim of a breach
(in domestic courts) would only be able to obtain a declaration of
incompatibility, rather than a decision that the public authority acted unlawfully
1.3 Absolute, Limited, and Qualified Rights
Types of Rights:
1. Absolute Rights:
Cannot be interfered with (e.g., Article 3: Freedom from torture),
state must uphold them at all times
2. Limited Rights:
Limited in specific, defined situations (e.g., Article 5: Lawful
detention).
3. Qualified Rights:
Balance individual rights with public interest (e.g., Article 8: Private
life).
Rights which list exceptions which help to define the rights- absolute rights
Rights which list specific and finite situations in which they can be interfered
with- limited rights
Key Articles:
o Absolute: Articles 2, 3, 4, 6 (fair trial), 7.
o Limited: Articles 5, 6 (public trial exceptions).
o Qualified: Articles 8–11, Article 1 of Protocol 1.
1.4.1 Qualifications Must Be Express
Restrictions on qualified rights must be expressly stated in the ECHR and used
for their prescribed purpose (Article 18).
Restrictions must:
o Be prescribed by law.
o Have a legitimate aim.
o Be necessary in a democratic society.
o Not be applied in a discriminatory way (Article 14).
Key Point:
o Article 14 does not provide a general right to freedom from discrimination;
it only ensures that rights and freedoms in the ECHR are secured without
discrimination.
1.4.2 Qualifications Must Be Prescribed by Law (or ‘in accordance with the
law’)
A government can rely on a Convention qualification only if the state’s laws
actively provide for it.
The law giving effect to the qualification can be written or unwritten.
The law must:
o Be accessible (published and available to the public).
o Be sufficiently precise to enable citizens to regulate their behaviour.
,Admin Revision
Case Examples:
1. Malone v UK (1984):
o English law on telephone tapping was too vague to justify interference
with Article 8 rights.
2. R (on the application of Purdy) v DPP (2009):
o Lack of specific policy on prosecuting assisted suicide violated Article 8(2).
o The law was unclear, leaving individuals unable to predict prosecution
risks.
o The DPP later issued clear guidelines as a result.
1.4.3 Legitimate Aims
Qualifications must align with legitimate state aims specified in the Convention.
Common legitimate aims include:
o National security, public safety, or economic well-being (e.g. Article
8).
o Prevention of disorder or crime (e.g. Articles 8, 10).
o Protection of health or morals (e.g. Articles 8, 10).
o Protection of the rights or freedoms of others (e.g. Article 8).
o Prevention or disclosure of confidential information (e.g. Article
10).
o Maintaining judicial authority and impartiality (e.g. Article 10).
1.4.4 Necessary in a Democratic Society
Restrictions must be ‘necessary in a democratic society.’
This involves:
1. A pressing social need (not an absolute necessity).
2. Proportionality: The restriction must not go further than necessary to
achieve its aim.
3. A margin of appreciation for states to judge necessity based on their
context.
Case Examples:
1. R v Handyside (1976):
o UK obscenity laws upheld under Article 10 to protect public morals.
o The state was allowed a margin of appreciation to decide what public
interest required.
2. R v Dudgeon (1982):
o Criminalizing private homosexual conduct violated Article 8, as it was not
necessary in a democratic society.
1.4.5 Example of Qualifications at Work
Scenario: Rehana objects to an incinerator near her home under Article 8.
o Legal basis: The Waste Management Act 2012 qualifies Article 8 rights.
o Legitimate aim: The Act pursues the ‘economic well-being of the country.’
o Necessary in a democratic society: The proportionality test applies—could
a lesser interference achieve the same aim?
1.5 Protection from Discrimination (Article 14)
Article 14 ensures ECHR rights are applied without discrimination on grounds
such as sex, race, religion, or other status.
This is not a free-standing right; discrimination must affect the enjoyment of
another Convention right.
Covers both:
, Admin Revision
o Direct discrimination: Treating someone less favourably due to a
protected characteristic.
o Indirect discrimination: Applying a neutral rule that disadvantages a
particular group.
1.6 Derogations
Article 15 allows states to derogate from the ECHR in:
1. Times of war.
2. Public emergencies threatening the life of the nation.
Non-derogable rights:
o Article 3 (torture, etc.).
o Article 4(1) (slavery).
o Article 7 (retrospective criminal offences).
o Article 2 (right to life), except for lawful acts of war.
UK Procedure (HRA 1998):
o Section 14: Sets a statutory process for enacting derogations.
o Section 1: Convention rights must be read subject to derogations.
Case Example:
A v Secretary of State for the Home Department (2005):
o Anti-terrorism derogation under Article 5 quashed for being
disproportionate.
o Led to changes in UK law (Prevention of Terrorism Act 2005).
2.1 Overview of the Act
Main Sections of the HRA 1998
1. Section 1: Incorporates and gives effect to Convention rights.
2. Section 2: Courts must “take into account” ECtHR judgments but are not bound
by them.
3. Section 3: Legislation must be interpreted to be compatible with Convention
rights “so far as it is possible to do so.”
o Applies to past and future legislation.
4. Section 4: Courts (High Court and above) can declare Acts of Parliament
incompatible with Convention rights.
5. Section 6: Public authorities (including courts) must not act incompatibly with
Convention rights unless acting under incompatible legislation.
6. Section 7: A victim of an unlawful act by a public authority may bring legal
proceedings or rely on Convention rights in existing proceedings.
7. Section 8: Courts may award damages for breaches of Convention rights if
“necessary to afford just satisfaction.”
8. Section 10: A fast-track process allows the Government to amend or repeal
legislation found incompatible with the ECHR through “remedial orders” if there
are compelling reasons to do so. Delegated legislation which has to be approved
by Parliament under the ‘affirmative procedure’
9. Section 19: Ministers must issue a statement of compatibility for new bills
or explain why they are proceeding despite incompatibility.
2.2 Method of Incorporation of Convention Rights
Refer to Sections 2 and 3:
o Courts must interpret Convention rights and domestic legislation
consistently with the ECHR wherever possible.
2.3 Declaration of Incompatibility
