Week 17: Human Rights, Absolute and Qualified Rights, Derogating from the ECHR

Question 1

What does it mean to have a right?

Answer 1

Holding a right gives you an entitlement
Amounts to “a trump card” (Dworkin)

• A knock-down argument that overcomes any otherwise legitimate reason for action that interferes with your right
• The state has a duty to respect your right and ensure you can enjoy it
• Rights can be overridden in particular circumstances (e.g. competing rights)

Question 2

Explain the characteristics of human rights

Answer 2

Relates tohuman individuals as rights-holders

• Can also include corporations (e.g. ECHR Protocol 1 Article 1 “Every natural and legal person is entitled to …”

Legal recognition and protection by institutions of the state as duty-bearers (corporations not human but granted similar rights)

• Duty to ensure state’s own actions do not interfere with rights
• Duty to ensure that rights are protected from interference by others (e.g., via legal frameworks)

Question 3

Explain negative rights as a category of human rights

Answer 3

• Can be enjoyed without the state being required to do anything
• Require inaction by state not to interfere with rights
• E.g. Civil and political rights (freedom from torture, freedom of speech, etc)
• Traditional idea of civil liberties

Question 4

Explain positive rights as a category of human rights

Answer 4

• Require some sort of action by state for the provision of rights
• E.g. an implicit duty to investigate alleged breaches of the right to life
• Economic and social rights (housing, education, employment, social security)

Question 5

How do human rights exist in domestic law in the UK

Answer 5

Common Law Tradition of Civil Liberties (in place before the ECHR)

• Rights and freedoms that protect individuals from government power
• E.g. the right to life; prohibition on torture, security of the person etc
• A liberty to do everything not prohibited
• Overlapping and complementary with the European Convention of Human Rights

Question 6

Describe 1st Generation Rights (ECHR, ICCPR) (international)

Answer 6

• Civil and political rights (e.g. right to privacy)
• Generally favours the abstention, rather than the intervention, of Governments (negative rights)

Question 7

Describe 2nd Generation Rights (e.g. ICESCR) (international)

Answer 7

• Social, cultural and economic (e.g. right to education)
• Broadly conceptualised as rights requiring State intervention

Question 8

Describe 3rd Generation Rights (international)

Answer 8

• Collective rights (E.g. right to a healthy environment)
• Challenges the traditional Western perspective of human rights by bringing in non-human matters which have a diffuse impact on humanity

Question 9

Examples of human rights instruments

Answer 9

• Post-WW2: Universal Declaration of Human Rights
• International Covenant on Economic, Social and Cultural Rights
• European Convention on Human Rights; American Convention on Human Rights

Focus on the ECHR and the European Court of Human Rights

Question 10

Differentiate between the Council of Europe and the European Union

Answer 10

Council of Europe:

• European Convention on Human Rights
• European Court of Human Rights - Based in Strasbourg
• Concerned with promoting democracy and human rights in Europe

European Union:

• Various legal instruments(e.g. Charter of Fundamental Rights of the European Union)
• Court of Justice of the European Union -Based in Luxembourg
• Concerned with economic integration of European countries (noting the intersection of this aim with human rights)

Question 11

Explain absolute rights

Answer 11

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” - Article 3 European Convention on Human Rights

Question 12

For rights that are not absolute, what are the two forms of limitation

Answer 12

Qualified rights: (subject to qualifications where a state can breach this right)

A) Right itself is qualified

• Respect for them balanced by other concerns
• Specific exceptions
• Public Interest and respect for other rights

B) Potential for Derogation

Question 13

What are some specific exceptions to the qualifications to rights

Answer 13

Many rights limited in specific ways:
Article 2 – right to life not infringed if defence against unlawful violence, effecting lawful arrest or quelling riot
Article 4 – forced or compulsory labour does not include work done as standard part of detention or in compulsory military service
Article 5 - right to liberty not infringed by lawful detention after conviction, following arrest, for educational supervision or for mental or other health reasons, including drug users and alcoholics
Article 6 - publicity as part of fair trial can be restricted for national security, interests of juveniles and privacy, or where prejudice to interests of justice

Question 14

Explain qualifying paragraphs as qualifications to rights

Answer 14

Seen in articles 8-11 subject to qualifying paragraphs

• Specific exceptions
• Broader exceptions based on public interest considerations and balancing the rights and freedoms of others

Example: “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 8(2) European Convention on Human Rights

Note wording is slightly different in each Article
There are broad commonalities

Question 15

The ECHR generally allows interference (qualifications to rights) where it is:

Answer 15

• in accordance with the law or prescribed by law
• necessary in a democratic society

Question 16

What are the key criteria that must be met for an interference with an individual’s rights to be considered ‘in accordance with the law’ or ‘prescribed by law’(3 parts)

Answer 16

1) there must be a specific legal rule or regime which authorises the interference;
2) the citizen must have adequate access to the law in question (The Sunday Times v United Kingdom (1979) 2 EHRR 245);
3) the law must be formulated with sufficient precision to enable the citizen to foresee the circumstances in which the law would or might be applied (Malone v United Kingdom (1984) 7 EHRR 14).

Question 17

What is the definition of “necessary in a democratic society” (2 parts)

Answer 17

that an interference corresponds to a pressing social need;
that it is proportionate to the legitimate aim pursued

Question 18

Explain the 3 part test for restricting qualified rights

Answer 18

1) Is there alegal basis for the restriction of the right?

• Was the restriction “in accordance with the law” (Article 8) or “prescribed by the law” (Articles 9-11)
• Law can be unwritten (Sunday Times v. United Kingdom (1979-1980) EHRR 245)

2) Is there a legitimate aim or justification for the restriction, such as the protection of other people’s human rights?

• Does the restriction contribute to one of the aims listed in the qualification of the right?
• Often an easy test to meet

3) Is the restriction “necessary in a democratic society”?

• Was the action proportionate? Is it the minimum necessary restriction of the right?
• Balance the severity of the restriction placed on the individual against the importance of the legitimate aim or public interest

Question 19

Give examples of how human rights are applied and guaranteed - protests in the UK

Answer 19

Restrictions on meetings at certain places

• Limits rights of the ECHR: freedoms of expression and assembly (Arts 10 & 11)
• Not absolute rights however
• So often justified for public order, crime, health grounds etc.

Protests outside Scottish Parliament

• Scottish Parliamentary Corporate Body v Sovereign Indigenous Peoples of Scotland (No.2) [2016] CSIH 81
• Not that they were never allowed to protesxt but this type of process in breach of their own and others human rights

Around controversial tree-felling

• Sheffield City Council v Fairhall [2017] EWHC 2121
• individuals were entering the area where tree surgeons were operating
• risking their health and trespassing

Question 20

Give examples of how human rights are applied and guaranteed - Freedom of Expression in the UK

Answer 20

General example: freedom of speech not infringed by licensing of broadcasting and TV

• Regulation of access to the limited space available in the airwaves and to deal with incitement to commit crimes

Financial Times v United Kingdom Application no.821/03

• Confidential information leaked to press about Interbrew’s possible takeover bid of another brewing company
• Financial Times ordered to disclose documents by the High Court, which was upheld by the Court of Appeal (appeal refused by the Supreme Court)
• Requirement for journalists to disclose leaked documents which might have revealed their source was an unjustified interference with their right to freedom of expression
• Protection of sources a basic condition of press freedom in a democratic society; interest in preventing further dissemination of documents not sufficient to outweigh public interest in protecting such sources

Question 21

Give examples of how human rights are applied and guaranteed - Right to Peaceful Enjoyment of Possessions in the UK

Answer 21

Qualified right: state can “enforce such laws as it deems necessary to control the use of property in accordance with the general interest…”

• Also respect other rights, notably to a fair trial

Planning systems and even compulsory purchase acceptable

• R (Trailer & Marina (Leven) Ltd) v SoS for Environment, Food & Rural Affairs [2004] EWCA Civ 1580
• The right analysis seems to us to be that provided the state could properly take the view that the benefit to the community outweighs the detriment to the individual, a fair balance will be struck, without any requirement to compensate the individual. Should this not be the case, compensation in some appropriate form may serve to redress the balance, so that no breach of article 1 of the First Protocol occurs.
  Mott v Environment Agency [2018] UKSC 10

Question 22

Derogation in time of emergency - Art 15 (1)

Answer 22

“In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under [the] Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.”

• Article 15(1) of the European Convention on Human Rights

A derogation, however, does mean that the rights can be completely ignored

• They can only be interfered with to the extent strictly required by the situation
  Other international obligations may continue to give them priority

Question 23

What is derogation

Answer 23

Derogation is where a State can relax the laws (and the enforcement of those laws) relating to the right it is derogating from

Question 24

Derogation in time of emergency - Art 15 (2) and (3). What can there be no derogation from? And what must states intending tomderogate under Art 15 do?

Answer 24

Under art.15(2) of the ECHR, no derogation from:

• Art 2 (life), except in respect of deaths resulting from lawful acts of war
• Art 3 (torture and inhuman treatment)
• Art 4 (paragraph 1) (slavery)
• Art 7 (punishment without law)

Under Article 15(3), states intending to derogate under Article 15 must:

• Inform the Secretary General of the Council of Europe of the measures taken
• The reasons for those measures, and
• When the derogation measures have ceased effect due to normality being restored

Question 25

Give examples of derogations

Answer 25

• UK (Northern Ireland “Troubles”) 1957-2001
• France (Paris terrorist attacks) – Nov 2015-Nov 2017
• Covid-19?
• Turkey (attempted coup) July 2016 –

Question 26

What constitutes a public emergency in relation to derogations?

Answer 26

Lawless v Ireland (No 3) (1979-80) 1 EHRR 15, para 28

• “an exceptional situation of crisis or emergency
• which affects the whole population
• and constitutes a threat to the organised life of the community of which the State is composed”

Generally, States are restrained in claiming that a public emergency has arisen

• Greek case (1969) 12 Yearbook of the ECHR 1:
• Legal Requirements: The Court highlighted that states must adhere strictly to the legal requirements for derogating from human rights obligations during a public emergency.
• Necessity and Proportionality: The Court stressed the principles of necessity and proportionality in assessing whether a public emergency justifies derogations from human rights.
• Limited Scope: The Court indicated that the derogation must be limited to the extent strictly required by the exigencies of the situation
• Judicial Review: The Court implied that there should be effective judicial review of measures taken during a public emergency to ensure compliance with human rights standards

Question 27

Does a public emergency need to be occurring or imminent for a State to derogate from the ECHR?

Answer 27

Important for defining the scope of derogation powers available to States

The English translation of Lawless v Ireland (No 3) silent on the matter

• But the French language version of the judgment does refer to an “imminent” emergency
• Has been broadly adopted by the Council of Europe

Question 28

Who is entitled to identify that a public emergency has taken place?

Answer 28

Aksoy v Turkey (1997) 23 EHRR 553, para 68

• “The Court recalls that it falls to each Contracting State, with its responsibility for“the life of [its] nation”, to determine whether that life is threatened by a“public emergency”and, if so, how far it isnecessary to go in attempting to overcome the emergency.”
• States do not enjoy an unlimited discretion – up to the court to rule on whether States have gone beyond the “extent strictly required by the exigencies” of the crisis.
• The domestic margin of appreciation is thus accompanied by a European supervision [via ECtHR]”

Underlying basis for this approach is that States are better placed to identify a public emergency and “on the nature and scope of derogations necessary to avert it”

• Direct and continuous contact with individuals in the State

This is not to imply that the European Court of Human Rights will not ever intervene if they thought a claim was unjustified

• Greek case (1969) 12 Yearbook of the ECHR 1:ECHR held that while the current greek military coup gov had identified a public emergency was occurring, court felt it was unjustified

Question 29

UK case law relating to use of Article 15 in practice

Answer 29

A and others v Secretary of State for the Home Department (Belmarsh) [2004] UKHL 56

• UK had detained individuals accused of terrorism related offences but they hadnt been found guilty of offences because they hadnt been put to trial due to security risks
• Holding individuals indefinite detention: breach of rights under ECHR. Couldnt deport them as may be tortured: breach of Article 3 rights

Majority:

• pre-eminently a political matter for Government and Parliament and great weight to be given to their views
• no basis for overturning their view that there was emergency
• noted that this is just a threshold issue, not final conclusion on legitimacy of the action in question

Lord Hoffman underlines importance of personal liberty, and refused to grant the Government a wide discretion in declaring a public emergency - doesnt take away from majority

Question 30

Define what is meant by the phrase “to the extent strictly required by the exigencies of the situation”

Answer 30

• Emergency that meets Article 15 does not give a free hand to States - Aksoy v Turkey, para. 68
• Measures should seek to safeguard “democratic values”, such as pluralism, tolerance, broadmindedness – Mehmet Hasan Altan v Turkey no. 13237/17, 20 March 2018

Question 31

What will the court consider when determining whether a State has gone beyond what is strictly required to prevent or respond to the public emergency?

Answer 31

1. the nature of the rights affected by the derogation
2. the circumstances leading to
3. and the duration of, the emergency situation

Question 32

Give examples of the factors used by court to determine whether a State has gone beyond what is strictly required to prevent or respond to the public emergency has been used in practice

Answer 32

Would ordinary laws have been sufficient to prevent or respond to the public emergency?
Are the measures being used for the purpose for which they were granted?
Were the measures subject to safeguards?
The importance of the right at stake, and the broader purpose of judicial control over interferences with that right