Distinction level Human Rights and Public Law notes (overall grade, 80).
Crafted by a recent graduate who received a distinction in the very same course, these notes are tailored to your PGDL program, ensuring they cover the crucial Human Rights and Public Law concepts you need to master.
Al...
Introduction to ECHR
The UK was a signatory to the European Convention on Human Rights
● Bound as a matter of international law to comply with the Convention → ratified in 1951
● Judgements of the ECtHR are binding on the UK as a matter of international law
Procedure
There are 2 ways in which proceedings may commence:
a) State applications
● Proceedings may be brought against the UK by another signatory state
b) Individual petitions
● Individuals who allege that their Convention rights have been breached may start
their own proceedings against the UK in Strasbourg
● Must be shown that any domestic remedies which exist have first been exhausted
● The petition must be made within four months of the final UK decision
● The body in breach must be a public body
Two-stage process
Two mains stages:
a) The admissibility stage:
● A single-judge formation will declare an application inadmissible (if obvious
from the outset)
● No right to appeal against its decisions
,b) The merits stage:
● 3 Member Committee → cases covered by well-established case law of the Court
- They will rule on the admissibility and where the case is admissible, give a
final decision or judgement
● Chamber of 7 judges → other cases heard by this chamber, which rule on the
admissibility and give judgement by a majority
- The judgement becomes final after 3 months
- During this time, the applicant may ask for the case to be referred to the
Grand Chamber for fresh consideration (their judgement is final)
Remedies
● Individual decisions are only binding as a matter of international law under the
Convention and have no direct binding force in domestic law
● The Committee of Ministers of the Council of Europe are responsible for ensuring that
states comply with judgements of the ECtHR
● The Court relies on the willingness of states to abide by the Convention and accept its
judgements
○ Dec 2020: Council of Europe (oversees the ECHR), passed a resolution which
expressed ‘profound concern’ at the govts failure to enforce judgements by the
ECtHR
General Principles
Subsidiarity:
,Principle which states that human rights should primarily be protected at national level and the
system under the ECHR is subordinate to this
Living Instrument:
The ECHR 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 ECtHR does not operate a strong system of precedent
Margin of Appreciation:
National authorities are in principle better placed than the ECtHR to evaluate local needs and
conditions (Protocol 15 (ECHR))
● Where member states legitimately reach different conclusions on a particular issue, the ECtHR
will respect the judgement of a member state as to what the public interest requires
● The state’s margin of appreciation is subject to the supervision of the ECtHR (reviews whether
it is compatible with the ECHR)
Extent of the margin of appreciation varies depending on context
a) Important principles / general consensus as to meaning = no / narrow margin
b) Where there are diverging views = wider margin
Case Law Example:
○ Handyside v UK (1979) → ECtHR held that the UK hadn’t breached Article 10 when its
obscenity laws prohibited publication of a sex education manual for children
○ SAS v France (2014) → claimant challenged a ban on wearing clothing designed to conceal the
face in public (breached right to private life & right to manifest religion / belief)
- As views on this topic could differ in a democratic society (little agreement) → states
had a wide margin of appreciation
Protection from Discrimination:
,Article 14 → all of the rights and freedoms set out in the ECHR must be protected and applied without
discrimination
● To rely on this right, a victim must show that the discrimination has affected their enjoyment
of one or more of the other rights in the Convention
Derogations:
Article 15 → a state may derogate from part of the Convention ‘in time of war or other public
emergency threatening the life of the nation’
● For the period of the derogation, the State is not bound to apply the specified provisions
● Must only be to the extent that it is strictly necessary
● No derogation is possible in respect of Article 3 (torture), 4(1) (slavery), 7 (retrospectice criminal
offences) or 2 (right to life), except in respect of deaths resulting from lawful acts of war
● A UK court will not be able to enforce Convention rights where a derogation is in operation
Human Rights Act 1998
Main Sections
Section 1 → incorporates and gives effect to the Convention Rights
● Article 2 - 12 and 14 of ECHR
● Article 1 - 3 of the First Protocol
● Article 1 of the Thirteenth Protocol
Section 2 → domestic courts must ‘take into account’ judgements of the ECtHR, but are not
bound to follow them
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’
,Section 4 → High Court and higher courts may declare an Act of Parliament to be incompatible
with Convention rights
● Does not affect the validity or bind the parties to the proceedings (political pressure to
change the law)
Section 6 → unlawful for a public authority to act in a way which is incompatible with
Convention rights
- Section 6(3) → Court is a public body
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’
Section 8 → 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 UK legislation is in breach, the Govt may make a ‘remedial order’ changing UK
law
● Delegated legislation which then has to be approved by Parliament, under the
‘affirmative procedure’
Section 19 → a Minister introducing future legislation must make a written statement stating
that the bill is compatible with Convention Rights or that it is incompatible but still wishes to
proceed
Act of Public Authorities
Section 6(1) → it is unlawful for a public authority to act in a way which is incompatible with
Convention rights
● Doesn’t apply where, as a result of an Act of Parliament, the authority couldn’t have
acted differently or the authority is giving effect to, or enforcing, provisions of an Act
which are incompatible with the Convention
● Adds a ground of challenge in judicial review of administrative acts
, ● If a decision maker is a public body under the traditional principles of judicial review, it
will also be a public authority for the purpose of a decision which breaches a Convention
right
Enforcement against private individuals
The court is a public authority and therefore has a duty to apply the Convention → horizontally
as Convention rights can affect relations between private citizens
Absolute Rights:
Convention rights are normally divided into 3 types:
a) Absolute Rights → states must uphold at all times (no interference)
b) Limited Rights → can only be limited in clearly defined and finite situations
c) Qualified Rights → require a balance between the rights of the individual and wider
public interest (may be interfered with to protect an important general interest / right of
others)
Generally:
● Articles 2-7 (absolute and limited rights) cover the most fundamental human rights
(contain no or narrow express exceptions)
● Article 8-11 and Article 1 of Protocol 1 cover qualified rights which can be overridden in
the public interest
Article 2 - Right to Life:
Article 2 is an absolute right, with exceptions that define its scope
, Substantive Obligation:
1) It prohibits the state from taking life and
2) Places on the state a positive duty to protect life
Positive Duty?
☑ State must put in place effective criminal law provisions to deter the commission of offences
against the person, backed up by law enforcement machinery
☑ May be a positive obligation on the authorities to take preventive operational measures to protect
an individual whose life is at risk from criminal acts of another individual
- Only where the authorities knew or ought to have known of the existence of a real and
immediate risk to the life of an identified individual from the criminal acts of a third
party and they failed to take measures within the scope of their powers which, judged
reasonably, might have been expected to avoid that risk
⤫ Has been held not to protect embryos by preventing their destruction, when one party withdraws
their consent to implantation
⤫ Right to die can’t be read into the right to life
Procedural Duty:
Places a procedural obligation on the state to investigate when individuals have been killed as a
result of force (McCann v UK)
In Da Silva v United Kingdom (2016), the ECtHR stated that for an ‘effective investigation’:
a) It was necessary for the persons responsible for carrying out the investigation to be
independent from those implicated in the events
, b) It must be adequate, that it must be capable of leading to the establishment of the facts
so determining whether the force used was or was not justified in the circumstances and
of identifying and punishing those responsible
c) The nature and degree of scrutiny necessary would depend on the circumstances but
would need to be stringent where death was at the hands of a state agent
d) The investigation must be accessible to the family
e) There must be a sufficiently element of public scrutiny
f) It must be carried out promptly
Derogation?
No derogation is possible, except in respect of deaths resulting from lawful acts of war
Article 2(2) allows the use of force that results in the deprivation of life, but only if certain
conditions are met:
1) Use of force must be no more than absolutely necessary
2) Must be in pursuit of one or more of 3 objectives:
a) The force is used in defence of any person from unlawful violence
b) Force is used to effect a lawful arrest or to prevent the escape of a person lawfully
detained
c) The force is used in action lawfully taken for the purpose of lawfully quelling a
riot or insurrection
Article 3 - Freedom from Torture:
Article 3 → Freedom from Torture, Inhuman and Degrading Treatment
● No limitations or exceptions
Substantive Obligation:
, ● Torture = the ‘deliberate inhumane treatment causing very serious and cruel suffering’
(Ireland v United Kingdom [1978])
● Inhuman treatment = treatment or punishment ‘likely to cause actual bodily injury or
intense physical and mental suffering’ (Ireland v United Kingdom [1978])
● Degrading Treatment = ‘treatment which humiliates or debases an individual showing a
lack of respect for, or diminishing, his or her human dignity or arouses feelings of fear,
anguish or inferiority capable of breaking an individual’s moral and physical resistance’
(Pretty v UK)
States have an obligation to ensure that non-state actors (such as parents or guardians) do not
punish children at a level at which Article 3 will be engaged
Asylum:
Case Law Example:
○ R (Limbuela) v Secretary of State for the Home Department [2005] → 3 asylum seekers were
refused support on the ground that they had not claimed asylum as soon as reasonably
practicable after arriving in the UK
- Prohibited from taking employment & so reliant on charity for food
- Court stated that Art 3 would be breached if an asylum seeker, with no means or
alternative support is ‘by the deliberate action of the state, denied shelter, food or the
most basic necessities of life’
- Take into account gender, age and health, support available, length of time
Deportation:
● Immigration Act 1971 allows the Government to deport those who are lawfully in the UK, but
aren’t UK citizens (if they have been convicted of a serious offence or their presence is not
conducive to the public good)
- Removal → where those who are not in the UK lawfully are removed
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