HUMAN RIGHTS ACT Flashcards
RELATIONSHIP BETWEEN THE ECHR AND HUMAN RIGHTS ACT 1998
The UK signed the European Convention on Human Rights
(‘ECHR’) in 1950. Under the ECHR, people who assert a
breach of their rights under the Convention may take their
case to the European Court of Human Rights (‘ECtHR’) once they have exhausted the legal process in their country, and
the ECtHR can then make a binding decision. To enable the UK courts to give efect to the rights protected by the ECHR, the UK incorporated the ECHR into UK law with the Human
Rights Act 1998 (‘HRA’).
HRA SECTION 1—INCORPORATION OF CONVENTION RIGHTS
- HRA Section 1 outlines the ‘Convention rights’: the rights of
the ECHR that are incorporated into UK law. - there are three types of Convention rights: abso-lute, limited, and qualifed.
Absolute Rights
Absolute rights are rights that cannot be limited by the state even in times of war or a national emergency. Neither can
they be balanced against the needs of public interest or
other individuals.
Limited Rights
A limited right means that the actual scope of the right can
be limited only as provided in the article itself.
convention rights
Qualifed Rights
Qualifed rights are rights that can be limited by the state in
order to pursue a legitimate interest as outlined in the partic-
ular article.
Qualifed Rights
a.Article 10—Freedom of Expression
b.Article 11—Freedom ofAssembly and Association
c.Other Qualifed Rights
Article 10—Freedom of Expression
Article 10 provides that “Everyone has the right to freedom
of expression”, which includes the “freedom to hold opinions and to receive and impart information and ideas without
interference by public authority”. However, Article 10 goes on to provide that this right can be limited by law to the extent
necessary in a ‘democratic society’ to achieve the following
legitimate aims: national security, territorial integrity, public
safety, the prevention of disorder or crime, and the protection of health or morals.
Article 11—Freedom ofAssembly and Association
Article 11 provides
that everyone has the right to peaceful assembly and to as-
sociate with others but allows the state to adopt laws impos-ing restrictions on this right as are necessary to achieve the
following legitimate aims: national security, the prevention of disorder or crime, the protection of health or morals, and the protection of the rights and freedoms of others.
Proportionality
When the state is seeking to restrict a qualifed right with the aim of achieving one of the objectives outlined in the law, the restriction must be** ‘necessary**’. A three-part proportionality test is used by the courts to determine whether a challenged measure is necessary.
*The object of the policy and the legitimate aim pursued
is **sufciently important **to justify limiting a fundamental
right;
*The measure is designed to meet the objective and is **rationally connected to it;
*The interference with the right is no more than neces-sary to accomplish the objective (that is, no less onerous means can achieve the aim); and
*The measure is **reasonable and balanced **in all the cir-
cumstances, given the competing needs of the individual
and the wider community.
Other Rights Protected by the HRA
*Protocol 1, Article 1: Right to Property;
*Protocol 1, Article 2: Right to Education;
*Protocol 1, Article 3: Right to Free Elections; and
*Protocol 13, Article 1: Abolition of the Death Penalty.
Judicial Deference
Judicial deference is closely related to the concept of pro-
portionality. The more politically controversial the issue, the more likely that the courts, when applying the proportionality test, will defer to the government and Parliament. \
The great-
er the deference shown, the less argument and evidence is
required to show that a measure is proportionate. A greater
level of deference is likely to be shown when a case involves questions of national security.
Margin of Appreciation
- When the UK government is challenged before the ECtHR,
they may argue that they are allowed **a ‘margin of apprecia-
tion’, **essentially that they are permitted **some discretion over the extent to which a right can be restricted. This particularly applies when the government seeks to limit a qualifed right **in pursuit of a legitimate purpose. - If there is a consensus amongst the member states of the
ECHR (that is, a common approach amongst a majority of
the states on the issue), then the court is likely to apply a
narrow margin of appreciation. Under a narrow margin of
appreciation, the ECtHR will conduct a full and detailed
review of the interference with the right. Thus, the court
will consider whether the discretion exercised complies
with the ECHR (meaning it will apply the proportionality
test for qualifed rights) and whether the discretion was
exercised carefully and in good faith. - By contrast, if each state approaches the issue diferent-
ly, then the margin of appreciation is likely to be much
broader, and the state is given a broader discretion
regarding how the right is protected and when it can be
restricted.
Living Instrument Principle
The ECtHR has considered that the ECHR is a living instru-
ment, so that the meaning of the ECHR can adapt to chang-
ing social and economic conditions.
3 principles under living instrument principle
a.Not Bound by Previous Decisions
b.Consistent Approach of Contracting States
c.ECtHR Must Be Accessible to All Individuals
Not Bound by Previous Decisions
The ECtHR can follow its own previous decisions, in line with precedent. However, it is free to depart from previous deci-
sions if a new issue arises or other developments justify a
change in how the ECHR is interpreted.
Consistent Approach of Contracting States
The ECtHR may also choose to follow an approach adopted
by some or all of the contracting states on a particular issue
or Convention right. This may sometimes be a key reason for the ECtHR to depart from previous decisions.