7. Human Rights Law: ECHR, ECtHR Doctrines, and Pre-HRA UK Protection

How does a "liberty" differ from a "right" in UK law?

A liberty is lawful because not prohibited. A right is specifically provided for by law

What is a key implication of having a "right" versus a "liberty"?

A right can require positive action from the state, unlike a liberty

What is the general philosophical basis for "human rights"?

Generally based in liberalism, allowing people to do what they want where possible

Why was the European Convention on Human Rights (ECHR) drafted?

Due to the Second World War experience and the unenforceability of the UDHR 1948

What is the international legal status of the ECHR?

It created a binding commitment in international law, but not UK domestic law (dualism)

List three core rights protected by the ECHR.

Rights to Life, prohibition of Torture, right to Liberty and Security. (Also: fair trial, expression, marriage, etc.)

What are the three types of Convention rights?

Absolute, Limited, and Qualified rights

Absolute, Limited, and Qualified rights

Rights that can never be interfered with in any circumstances

Give an example of an absolute right and a relevant case.

Article 3 (Prohibition of Torture), as seen in Tyrer v UK

What is a "limited right" under the ECHR?

Freedoms that can be restricted only under explicit, specified circumstances within the Convention

Give an example of a limited right and a positive state duty associated with it.

Article 2 (Right to Life) includes a positive duty to protect individuals from threats

What is a "qualified right" under the ECHR?

Rights that can be restricted to protect others' rights or public interest (e.g., crime prevention)

List three key qualified rights under the ECHR.

Article 8 (Private and Family Life), Article 10 (Freedom of Expression), Article 11 (Freedom of Assembly)

What is the common structure for justifying interference with a qualified right?

Interference must be in accordance with law and necessary in a democratic society for a legitimate aim

In R (Coughlan), what Article 8 right was relevant?

Ensuring an individual's right to their home is respected in healthcare decisions

What is the nature of Article 14 (Prohibition of Discrimination)?

It is a "parasitic" right; it does not stand alone but relates to other Convention rights

What does ECHR Article 15 allow states to do?

Allows derogation from obligations in times of war or public emergency, if strictly required

Which ECHR rights are "non-derogable"?

Article 3 (torture), Article 4(1) (slavery), and Article 7 (retrospective penalties)

What is the "Strasbourg Court"?

The European Court of Human Rights (ECtHR), which is distinct from the CJEU in Luxembourg

Are ECtHR judgments binding on states?

es, they are binding in international law on the involved High Contracting Party

What is the key test for justifying interference with a qualified right?

The interference must be "proportionate" to the legitimate aim pursued

Outline the four steps of the proportionality test. (As per Bank Mellat)

1. Sufficiently important objective. 2. Rationally connected. 3. Less intrusive alternative. 4. Balance of effects

How does proportionality differ from Wednesbury unreasonableness?

Proportionality requires assessing the balance struck, not just if a decision is within a reasonable range

What is the "margin of appreciation" doctrine?

It recognises that national states are better placed to determine the necessity of restrictions on rights

Give a case example of the "margin of appreciation" in action.

    Handyside v United Kingdom

What is the "living instrument" doctrine of the ECHR?

The Convention is interpreted in light of present-day conditions, allowing it to evolve

Give a case example where the "living instrument" doctrine was applied by the ECtHR and UK courts.

Goodwin v UK (transgender rights) and Bellinger v Bellinger

What principle governs the UK's relationship with international law like the ECHR before the HRA?

Dualism: international and domestic law exist in different realms

How did UK courts apply the ECHR before the Human Rights Act 1998?

Through statutory interpretation (ambiguity, principle of legality) and common law development (anxious scrutiny)

How did courts use statutory interpretation regarding the ECHR before the HRA?

They presumed Parliament intended to legislate in conformity with the Convention where legislation was ambiguous

What is the "principle of legality" as seen in ex parte Simms?

Parliament must squarely confront and accept the political cost of legislating contrary to basic rights

What was "anxious scrutiny" in pre-HRA human rights cases?

Courts would subject administrative decisions to more rigorous examination where rights were at risk

Which case illustrated "anxious scrutiny" regarding decisions impacting life?

R v Secretary of State for the Home Department, ex parte Bugdaycay

Why did Malone v Metropolitan Police Commissioner highlight the limits of common law protection?

The court found no recognised right to privacy in English law, making phone tapping lawful