Public Law - Key Rights and Freedoms
N.B. European Court of Human Rights (ECtHR) judgements are NOT binding on
English & Welsh courts but are highly persuasive. HOWEVER, if the UK itself is found
to be in breach of the ECHR, that decision of the ECtHR is binding on the UK
Absolute rights: cannot be interfered with in any circumstances, States must uphold
them at all times
- Articles 2, 3, 4, 6 - in relation to a fair trial, 7, 9 - in relation to freedom of thought,
12
Limited rights: can only be limited in clearly defined and finite situations.
- Articles 5, 6 - in relation to the trial being public
Qualified rights: require a balance between the rights of the individual and the wider
public interest, so may be interfered with to protect an important general interest or the
rights of others.
- Articles 8, 9 - in relation to freedom in worship, teaching, practice, or observation,
10, 11, Art 1 Protocol 1
Derogations (Article 15 ECHR):
- A state may derogate from certain Conventions (not the ones below) ‘in time of
war or other public emergency threatening the life of the nation’ so that it is not
bound by its specified provisions
- S.14 HRA 1998 - statutory procedure for enacting a derogation as part of UK law
- S.1 HRA 1998 - Convention rights are to be read according to any derogations
so that UK courts cannot enforce Convention rights when there is a derogation in
operation
- E.g. UK derogated from Article 5 (personal liberty) in Anti-terrorism Crime
and Security Act 2001, the delegated legislation implementing the
derogation was quashed in 2005 in A v Secretary of State for the Home
Department
- No derogation possible in respect to:
- Article 2 - right to life (except deaths resulting from lawful acts of war)
- Article 3 - torture
- Article 4(1) - slavery/servitude
- Article 7 - retrospective criminal offences
HRA 1998 - Key Sections
,- Section 1 - incorporates and gives effect to the Convention rights.
- Section 2 - domestic courts must ‘take into account’ judgments of the ECtHR but
are not bound to follow them.
- I.e. ECtHR decisions highly persuasive for domestic courts, but if the
ECtHR rules the UK itself has breached a Convention right, it must abide
by the decision
- Section 3 - ‘So far as it is possible to do so, primary and subordinate legislation
must be read and given effect in a way which is compatible with the Convention
rights’. This applies to past and future legislation.
- E.g of legislation having to be read by domestic courts in a way that is
compatible with Convention rights - Ghaidan v Godin-Mendoza (HL)
- Facts:
- Man’s partner (a man) died
- Partner claimed possession as the flat was subject to a
statutory tenancy under Rent Act 1977
- Landlord brought proceedings on the basis that the act gave
provisions to the ‘spouse’ of the deceased, and a same-sex
relationship was not spousal
- Found in favour of landlord at first instance
- Partner appealed on the basis that the Act as interpreted to
mean same-sex partners were not spouses was
incompatible with Article 8 (degree of security of tenure) and
Article 14 ECHR (discrimination in terms of ECHR rights
given due to sexual orientation)
- Held:
- Para 2(2) RA 1977 must be construed as including same-
sex partners in order to comply with Article 8 and 14 ECHR
- Section 4 - the High Court and higher courts may declare an Act of Parliament to
be incompatible with Convention rights - s.4(2)
- s.4(6) - a declaration of incompatibility is not legally binding, but does put
political pressure on Gov’t to change the law
- Section 6 - it is unlawful for a public authority (including a ‘court’) to act in a way
which is incompatible with Convention rights (unless giving effect to an
incompatible statute). This affects grounds of challenge in judicial review of
administrative acts.
, - s.6(2) - does not apply if, based on statute, a public authority could not
have acted differently, or the authority is giving effect to an Act which is
incompatible with the Convention
- A public authority is synonymous with a public body - held in R (Beer) v
Hampshire Farmers Market Ltd
- Horizontality - Convention rights affect relations btw private
citizens/companies (as well as public authorities via vertical effect),
because the court is a public authority under s.6 HRA so has a duty to
apply the Convention in cases involving private individuals
- Developed in Douglas v Hello! Ltd (No 1)
- Facts:
- Michael Douglas and Catherine Zeta-Jones had
granted OK magazine exclusive rights to publish
photographs of their wedding, and wedding guests
were asked not to take photographs
- Hello! magazine obtained some photographs
- This appeal concerned whether interim injunction
restraining publication of the photos should remain in
force
- Issue:
- Breach of confidence was considered, but the court
also considered Article 8 of the ECHR, being itself a
public authority under s.6 of the HRA 1998
- Section 7 - a person who claims that a public authority acted contrary to s.6 may
‘bring proceedings against the authority’ or ‘rely on the Convention right ... in any
legal proceedings’. The person must be a ‘victim of the unlawful act’.
- Standing - means that an individual/organisation must be directly and
personally affected to bring proceedings for a breach of a Convention right
- Pressure groups cannot bring claims for breach of a Convention right -
R(Adath Yisroel Burial Society) v HM Coroner for Inner North London
- Section 8 - that a court in civil proceedings may award damages where a public
authority unlawfully infringes a Convention right, if it is necessary ‘to afford just
satisfaction’ to the injured party.
- Section 10 - creates a ‘fast-track’ procedure for changing legislation. Where a UK
court or the ECtHR has found UK legislation to be in breach of the Convention,
the Government may, if there are ‘compelling reasons’ to do so, make a
‘remedial order’ changing UK law. This is delegated legislation which has to be
approved by Parliament under the ‘affirmative procedure’
, - Section 14 - statutory procedure for enacting a derogation (Art 15 ECHR) as part
of UK law
- Section 19 - a Minister introducing future legislation must make a written
statement stating that the bill is compatible with Convention rights (a ‘statement
of compatibility’) or that, although he or she is unable to make a statement of
compatibility, the Government wishes to proceed with the bill
Absolute rights
Article 2 - Right to life
- Scope / case law:
- Places a positive duty on the state to protect life (Osman v UK)
- A foetus has no right to life under Article 2 - Re F (in Utero) (Wardship)
and Re MB (Medical Treatment)
- Does not protect embryos by preventing their destruction when a party
withdraws their consent to implantation - Evans v UK
- Held:
- ECtHR dismissed appeal and accepted the decision of
national UK courts that embryos had no rights to life under
Article 2
- The decision was within the margin of appreciation allowed
to members states of the Convention
- Occurred after a foetus had been held not to have a right to
life by the UK CA, so clearly does not apply to an embryo
- Laws permitting assisted suicide do not automatically breach Article 2 -
Pretty
- Issue:
- The right to die cannot be read into the right to life protected
by Article 2
- Held:
- Claimant still failed in their claim that Article 8(1) right to
private and family life was infringed, because the court held
the interference with her right (the UK law banning assisted
suicide) was justified by Article 8(2)
- Police killings can be justified by Article 2(2) - R (Patricia Armani da Silva)
v The Director of Public Prosecutions
- Facts:
N.B. European Court of Human Rights (ECtHR) judgements are NOT binding on
English & Welsh courts but are highly persuasive. HOWEVER, if the UK itself is found
to be in breach of the ECHR, that decision of the ECtHR is binding on the UK
Absolute rights: cannot be interfered with in any circumstances, States must uphold
them at all times
- Articles 2, 3, 4, 6 - in relation to a fair trial, 7, 9 - in relation to freedom of thought,
12
Limited rights: can only be limited in clearly defined and finite situations.
- Articles 5, 6 - in relation to the trial being public
Qualified rights: require a balance between the rights of the individual and the wider
public interest, so may be interfered with to protect an important general interest or the
rights of others.
- Articles 8, 9 - in relation to freedom in worship, teaching, practice, or observation,
10, 11, Art 1 Protocol 1
Derogations (Article 15 ECHR):
- A state may derogate from certain Conventions (not the ones below) ‘in time of
war or other public emergency threatening the life of the nation’ so that it is not
bound by its specified provisions
- S.14 HRA 1998 - statutory procedure for enacting a derogation as part of UK law
- S.1 HRA 1998 - Convention rights are to be read according to any derogations
so that UK courts cannot enforce Convention rights when there is a derogation in
operation
- E.g. UK derogated from Article 5 (personal liberty) in Anti-terrorism Crime
and Security Act 2001, the delegated legislation implementing the
derogation was quashed in 2005 in A v Secretary of State for the Home
Department
- No derogation possible in respect to:
- Article 2 - right to life (except deaths resulting from lawful acts of war)
- Article 3 - torture
- Article 4(1) - slavery/servitude
- Article 7 - retrospective criminal offences
HRA 1998 - Key Sections
,- Section 1 - incorporates and gives effect to the Convention rights.
- Section 2 - domestic courts must ‘take into account’ judgments of the ECtHR but
are not bound to follow them.
- I.e. ECtHR decisions highly persuasive for domestic courts, but if the
ECtHR rules the UK itself has breached a Convention right, it must abide
by the decision
- Section 3 - ‘So far as it is possible to do so, primary and subordinate legislation
must be read and given effect in a way which is compatible with the Convention
rights’. This applies to past and future legislation.
- E.g of legislation having to be read by domestic courts in a way that is
compatible with Convention rights - Ghaidan v Godin-Mendoza (HL)
- Facts:
- Man’s partner (a man) died
- Partner claimed possession as the flat was subject to a
statutory tenancy under Rent Act 1977
- Landlord brought proceedings on the basis that the act gave
provisions to the ‘spouse’ of the deceased, and a same-sex
relationship was not spousal
- Found in favour of landlord at first instance
- Partner appealed on the basis that the Act as interpreted to
mean same-sex partners were not spouses was
incompatible with Article 8 (degree of security of tenure) and
Article 14 ECHR (discrimination in terms of ECHR rights
given due to sexual orientation)
- Held:
- Para 2(2) RA 1977 must be construed as including same-
sex partners in order to comply with Article 8 and 14 ECHR
- Section 4 - the High Court and higher courts may declare an Act of Parliament to
be incompatible with Convention rights - s.4(2)
- s.4(6) - a declaration of incompatibility is not legally binding, but does put
political pressure on Gov’t to change the law
- Section 6 - it is unlawful for a public authority (including a ‘court’) to act in a way
which is incompatible with Convention rights (unless giving effect to an
incompatible statute). This affects grounds of challenge in judicial review of
administrative acts.
, - s.6(2) - does not apply if, based on statute, a public authority could not
have acted differently, or the authority is giving effect to an Act which is
incompatible with the Convention
- A public authority is synonymous with a public body - held in R (Beer) v
Hampshire Farmers Market Ltd
- Horizontality - Convention rights affect relations btw private
citizens/companies (as well as public authorities via vertical effect),
because the court is a public authority under s.6 HRA so has a duty to
apply the Convention in cases involving private individuals
- Developed in Douglas v Hello! Ltd (No 1)
- Facts:
- Michael Douglas and Catherine Zeta-Jones had
granted OK magazine exclusive rights to publish
photographs of their wedding, and wedding guests
were asked not to take photographs
- Hello! magazine obtained some photographs
- This appeal concerned whether interim injunction
restraining publication of the photos should remain in
force
- Issue:
- Breach of confidence was considered, but the court
also considered Article 8 of the ECHR, being itself a
public authority under s.6 of the HRA 1998
- Section 7 - a person who claims that a public authority acted contrary to s.6 may
‘bring proceedings against the authority’ or ‘rely on the Convention right ... in any
legal proceedings’. The person must be a ‘victim of the unlawful act’.
- Standing - means that an individual/organisation must be directly and
personally affected to bring proceedings for a breach of a Convention right
- Pressure groups cannot bring claims for breach of a Convention right -
R(Adath Yisroel Burial Society) v HM Coroner for Inner North London
- Section 8 - that a court in civil proceedings may award damages where a public
authority unlawfully infringes a Convention right, if it is necessary ‘to afford just
satisfaction’ to the injured party.
- Section 10 - creates a ‘fast-track’ procedure for changing legislation. Where a UK
court or the ECtHR has found UK legislation to be in breach of the Convention,
the Government may, if there are ‘compelling reasons’ to do so, make a
‘remedial order’ changing UK law. This is delegated legislation which has to be
approved by Parliament under the ‘affirmative procedure’
, - Section 14 - statutory procedure for enacting a derogation (Art 15 ECHR) as part
of UK law
- Section 19 - a Minister introducing future legislation must make a written
statement stating that the bill is compatible with Convention rights (a ‘statement
of compatibility’) or that, although he or she is unable to make a statement of
compatibility, the Government wishes to proceed with the bill
Absolute rights
Article 2 - Right to life
- Scope / case law:
- Places a positive duty on the state to protect life (Osman v UK)
- A foetus has no right to life under Article 2 - Re F (in Utero) (Wardship)
and Re MB (Medical Treatment)
- Does not protect embryos by preventing their destruction when a party
withdraws their consent to implantation - Evans v UK
- Held:
- ECtHR dismissed appeal and accepted the decision of
national UK courts that embryos had no rights to life under
Article 2
- The decision was within the margin of appreciation allowed
to members states of the Convention
- Occurred after a foetus had been held not to have a right to
life by the UK CA, so clearly does not apply to an embryo
- Laws permitting assisted suicide do not automatically breach Article 2 -
Pretty
- Issue:
- The right to die cannot be read into the right to life protected
by Article 2
- Held:
- Claimant still failed in their claim that Article 8(1) right to
private and family life was infringed, because the court held
the interference with her right (the UK law banning assisted
suicide) was justified by Article 8(2)
- Police killings can be justified by Article 2(2) - R (Patricia Armani da Silva)
v The Director of Public Prosecutions
- Facts:
