Human Rights

Question 1

What is the European Convention on Human Rights (ECHR)?

Answer 1

The ECHR is a treaty agreed by governments. The Convention’s provisions protect civil liberties from unjustified interference by the state. They impose duties on the state to take positive measures to protect rights.

The purpose of the Human Rights Act 1998 is to incorporate most of the rights and freedoms set out in the Convention into domestic existing legislation. All our legislation must be compatible with the Convention and domestic courts are obliged to read and interpret legislation in a way which is compatible with Convention rights.

Section 6 of the Human Rights Act 1998 states it is unlawful for public authorities to act in a way which is incompatible with Convention rights.

Question 2

What are the Qualified Rights set out by the ECHR?

Answer 2

(8) Right to respect for private and family life.
(9) Freedom of thought, conscience and religion.
(10) Freedom of expression. (Article 10)
(11) Freedom of assembly and association. (Article 11)

Qualified rights can be subject to lawful interference by public authorities in certain circumstances, usually where a balance is required between the rights of the individual and the interests of the public in general.

Question 3

What are the Absolute and Limited Rights set out by the ECHR?

Answer 3

(2) The Right to Life
(3) Prohibition of Torture
(4) Prohibition of Slavery and Forced Labour
(5) Right to Liberty and Security
(6) Right to a Fair Trial
(7) No Punishment without Law

Absolute rights cannot be derogated from, restricted or balanced against any public interest. However, some of these rights are subject to tightly defined limits and are known as limited rights.

Question 4

What are the PLAN principles?

Answer 4

• Proportionality
• Legality
• Accountability
• Necessity

Question 5

What is the principle of legality?

Answer 5

“Is the interference or restriction ‘prescribed by law’ or ‘in accordance with the law?”

Any authority for infringement of HR must have a basis in domestic law which is:
• identified and established
• accessible by being written down and available, and
• clear enough so that its consequences can be foreseen.

Question 6

What is the Principle of Necessity?

Answer 6

Articles 8-11 (Qualified Rights) require that any interference must be ‘necessary in a democratic society’.

Three-fold test:

• Is there a pressing social need for the state to infringe the Convention right?
• Is the interference proportionate to the legitimate aim pursued?
• Are the reasons given by the state for the interference relevant and sufficient?

Question 7

What is the Principle of Proportionality?

Answer 7

By means of the principle of proportionality, the Convention is seeking to achieve a fair balance between the conflicting rights of the community and those of the individual. In order to justify this requirement, it must be shown that:

• what is proposed is not arbitrary or unfair
• the restriction is strictly limited to what is required to achieve the objective
• the severity of the effect of the restriction does not outweigh the benefit to the community that is being sought by the restriction.

Question 8

What is the Principle of Accountability?

Answer 8

In reality the European court looks at the three principles of legality, necessity and proportionality in the following order:
• is the measure lawful?
• if so, is there a good reason for it?
• if so, is it really necessary and proportionate?

In addition, the court would also consider whether the measure was non-discriminatory.

Recording of decisions, options considered and reasons for decisions will further provide protection from claims that Convention rights have been unjustifiably interfered with.