Administrative and Human Rights Law complete book summaries and notes of all 8 units covered in class. It is very well organised and structured, it includes all book readings, paragraphs and topics covered in class. With these notes I achieved a DISTINCTION!
WS 1 – INTRODUCTION TO HUMAN RIGHTS AND ABSOLUTE
RIGHTS
Manual Unit 3 Sub 1 - EXPLORING KEY RIGHTS AND FREEDOMS
1. Introduction to the ECHR and the Human Rights Act
1.1 Background to the ECHR
The ECHR is distinct from EU law, with its own institutions and procedures. The Convention
was adopted in 1950 and was drafted by the Council of Europe, an international organisation
that was formed after WW2, in an attempt to establish a common European heritage.
The Council accepted an obligation to ‘accept the principles of the rule of law and of the
enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms’.
• ECHR = response to the serious human rights violations Europe had witnessed during
and before the War, and also to the spread of Communism into Central and Eastern
Europe after the War.
• ECHR = statement of the fundamental principles of liberty accepted by the countries
of Western Europe, and would prevent future violations of human rights.
• ECHR = International Treaty which has now been signed by 47 European states.
• ECHR = a ‘living instrument’ in the sense that it has to be generously interpreted in the
light of its aim of protecting human rights, the understanding of which may change with
evolving social conditions.
• The UK ratified the Treaty in 1951 → effect: the UK is bound as a matter of
international law to comply with the Convention, by ensuring that UK law gives effect
to a list of rights set out in the ECHR.
• If the UK breaches the Convention, it is possible for other states who are parties to
bring proceedings before the European Court of Human Rights (ECtHR) in Strasbourg,
in addition to individual applications to enforce Convention rights.
• Judgments of the ECtHR are binding on the UK as a matter of international law.
1.2 Procedure
Two ways in which proceedings may commence:
• State applications:
o If the UK is in violation of the Convention, proceedings may be brought against
the UK by another signatory state.
• Individual petitions to the EctHR:
o Individuals who allege that their Convention rights have been breached as a
result of UK law may start their own proceedings against the UK in Strasbourg.
o BUT it must be shown that any domestic remedies which exist have first been
exhausted.
o There is a time limit. From 1 August 2021 the petition must be made within four
months of the final UK decision (the previous limit was six months). The final
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, UK decision will usually be the decision of the highest UK court having
jurisdiction.
Possible remedies include the court awarding compensation or requiring the state to change
its law.
BUT individual decisions are only binding as a matter of international law under the
Convention and have no direct binding force in domestic law → court relies on the
willingness of states to abide by the Convention and accept its judgments.
NB: in December 2020 the Council of Europe, which oversees the ECHR, passed a resolution
which expressed ‘profound concern’ at the UK Government’s failure to enforce judgments of
the ECtHR involving security force killings and suspected collusion cases in Northern
Ireland. In these judgments, the ECtHR had found procedural violations of Article 2 (the
right to life) of the ECHR due to various shortcomings in the investigations into the deaths.
Scope of the Convention; HR! see list of rights protected
1.3 Absolute, Limited and Qualified Rights
Not all Convention rights are absolute. Sometimes a public authority may be able to show
that its action is within one of the limitations or qualifications permitted by the Article in
question, and is therefore lawful.
Convention rights are normally divided into three types:
• Absolute rights:
o These rights can never be interfered with in any circumstances whatsoever.
States must uphold them at all times.
• Limited rights:
o These rights can only be limited in clearly defined and finite situations.
• Qualified rights:
o These rights require a balance between the rights of the individual and the wider
public interest, and so may be interfered with to protect an important general
interest or the rights of others.
Convention Right Absolute Limited Qualified
Article 2 (right to Absolute.
life) Note that
deprivation of life
resulting from the
use of no more force
than is absolutely
necessary
in narrowly defined
circumstances does
not constitute an
interference with
this right.
Article 3 (freedom Absolute.
from torture,
inhuman and
degrading treatment)
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,Article 4 (freedom Absolute. Note that
from slavery, etc) certain activities are
excluded from the
scope of compulsory
labour and so do not
constitute an
interference with
this right
Article 5 (liberty and Limited – contains
security of the Exceptions in
person) relation to lawful
arrest and detention
Article 6 (fair trial) Absolute as to a fair Limited in relation
trial to
the trial being in
public
Article 7 Absolute.
(punishment Note that Article 7
according to does not preclude
existing law) the trial and
punishment of acts
that are criminal
according to general
principles
recognised by
civilised nations
Article 8 (respect Qualified
for private and
family life)
Article 9 (freedom Absolute in relation Qualified in relation
of thought, etc) to freedom of to manifestation
thought, etc of freedom in
worship, teaching,
practice or
observation
Article 10 (freedom Qualified
of expression)
Article 11 (freedom Qualified
of assembly and
association)
Article 12 (right Absolute, but
to marry) according to national
law governing the
exercise of the right.
Article 1 of Protocol Qualified
1 (right to peaceful
enjoyment of
possessions)
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, Generally speaking, Articles 2–7 (absolute and limited rights) cover the most fundamental
human rights and contain either no exceptions whatsoever or narrow express exceptions, and
Articles 8–11 and Article 1 of Protocol 1 cover qualified rights which can be overridden in
the public interest.
1.4 Qualified Rights
How the courts determine whether the interference with a qualified right can be justified.
1.4.1 Qualifications must be express
• Only restrictions on qualified rights which are expressed in the ECHR are recognised,
and these must be used for the purpose for which they have been prescribed (Article
18).
• A restriction may only be relied upon if it is prescribed by law, has a legitimate aim
and is necessary in a democratic society. It must not be applied in a discriminatory
fashion (Article 14).
• Article 14 does not provide a general right to freedom from discrimination, only that
the rights and freedoms of the Convention must be secured without discrimination.
1.4.2 Qualifications must be prescribed by law (or be ‘in accordance
with the law’)
A government can rely on a Convention qualification to justify a restriction on a Convention
right only if provisions of that state’s law actually take advantage of the qualification =
prescribed by law!
→ The law giving effect to the qualification may be written or unwritten, but the qualification
must be embodied in law
→ the law must be accessible (in published form) and sufficiently precise to enable the
citizen to regulate his or her conduct.
• Eg: in Malone v UK (1984) 7 EHRR 14, the ECtHR held that English law on telephone
tapping was not clear enough at that time to provide a sufficient legal basis for a
restriction on the right to respect for private life.
1.4.3 Legitimate aims
Qualifications must be justified by reference to the aims specified for each right.
The principle is that the interests of society may justify restrictions on the rights of
individuals. The following are frequently specified in the Convention as legitimate state aims:
• the interests of national security, public safety or the economic wellbeing of the country
(eg Article 8);
• the prevention of disorder or crime (eg Articles 8 and 10);
• the protection of health or morals (eg Articles 8 and 10);
• the protection of the rights or freedoms of others (eg Article 8);
• the prevention or disclosure of information received in confidence (eg Article 10);
• maintaining the authority and impartiality of the judiciary (eg Article 10).
1.4.4 Necessary in a democratic society
Qualifications are usually required to be ‘necessary in a democratic society’ (eg Articles 8
and 10):
• There must be a ‘pressing social need’ (rather than an absolute necessity for any
restriction imposed).
• The interference with the Convention right must be proportionate.
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