Admin Law and Human Rights Revision
Unit 1: Absolute Rights
Identify the rights protected under the ECHR; how they are
classified and how they can be protected.
Absolute rights Limited rights Qualified rights
Absolute rights cannot be Limited rights are Qualified rights attempt to
interfered with under any expected to be protected find a balance between
circumstances. The State under domestic law, but the rights of the individual
has a positive obligation to there are numerous clearly and the public interest.
ensure that provisions are defined and finite Therefore, they can be
in place in domestic law to situations. The situations interfered with in order to
ensure that the rights are are typically outlined within protect important general
protected. the Convention right. interests. These
qualifications must be
prescribed by law, be in
pursuit of a legitimate aim,
and mut be necessary in a
democratic society
(proportionate)
Article 2, Article 3, Article Article 5 Article 8, Article 10, Article
4, Article 6, Article 7, 11, Article 1 Protocol 1
Article 9, Article 12
Explain the protections provided by absolute rights, in particular
Articles 2 and 3.
Article 2 Article 3
Conventio “Everyone’s right to life shall be “No one shall be subjected to torture
n right protected by law. No one shall be or to inhuman or degrading
deprived of his life save in the treatment or punishment”
execution of a sentence of a
court following this conviction of a
crime for which this penalty is
provided by law”
What the Prohibits the State from taking a Anyone seeking asylum in the UK
Article life and places a positive duty to has an alleged breach of Article 3 if
provides protect life on the State through the authorities subject them to
criminal law provisions. inhuman and degrading treatment.
Article 3 is breached if an asylum
There is a positive obligation for “by deliberate action of the state,
authorities to take preventative denied shelter, food, or the most
measures to protect those whose basic necessities of life” (R
life is in danger (Osman v UK) (Limbuela) v SoS for the Home
but this obligation only exists Department) There must be
when the authorities know or evidence that the asylum seeker:
have reason to suspect an - Had to sleep on the street
, immediate risk to life (Tkhelidze v (not for a short-term
Georgia) measure)
- They were seriously hungry.
Article 2(2) permits the use of - They were unable to satisfy
force that results in the the most basic requirements
deprivation of life, but only in of hygiene.
certain conditions:
- Use of force must be no The Immigration Act 1971 allows for
more than absolutely deportation for those who are
necessary. lawfully in the UK but are not
- Use of force must be in citizens if they been convicted of a
pursuit of defence of any serious offence or they are not
person from unlawful conductive to public good. There is
violence, bring about a breach of Article 3 if the individual is
lawful arrest/prevent being deported to a country where
escape, lawfully quelling a there is a real risk of them being
riot or insurrection. treated in a way that would violate
Article 3 (Soering v UK)
Scope of Article 2 does not protect unborn Torture is defined as “deliberate
the Article foetuses when one person inhuman treatment causing very
withdraws consent to serious and cruel suffering” (ECtHR)
implantation (Evans v UK)
Inhuman treatment as “likely to
The right to die (euthanasia) cause actual bodily injury or intense
cannot be interpreted from Article physical and mental suffering”
2 (Pretty v UK). If a nation has (Ireland v UK)
laws that allow for assisted
suicide, they are not in breach of Degrading treatment is defined as
Article 2 due to the provisions “treatment which humiliates or
under Article 8. 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)
There is an obligation on the State
to ensure that non-state actors do
no punish children at a level that
would engage Article 3 (A v UK)
Procedural There is an obligation to There is a similar duty under Article
duty under investigate when an individual 3 to carry out proper investigation
the Article has been killed as a result of when an individual alleges a
force so that the breach of the violation of their Article 3 rights.
Article can bring about legal There is an additional condition that
remedy, even if a criminal the victim must be able to
prosecution is unsuccessful participate effectively in the
(McCann v UK) investigation (Mocanu v Romania)
, The elements from Da Silva v UK It is considered a breach of Article 3
should be used in order to carry if harm is inflicted by a non-state
out an effective investigation: actor but the police are severely
- Persons responsible for flawed in their conduct to the point
carrying out the where it is considered a breach of
investigation should be Article 3 by neglecting their positive
independent from those obligation (D v Commissioner of
implicated in the events. Police for the Metropolis)
- The investigation must be
capable of establishing the
facts and determining if
force was justified, and
identifying and punishing
those responsible.
- The nature and degree of
scrutiny should ultimately
be stringent if the death
was at the hands of a state
agent.
- The investigation must be
accessible to the family.
- There must be a sufficient
element of public scrutiny.
- It must be carried out
promptly.
Structure for problem questions around breaches of Article 2 and 3
Article 2 Article 3
Define the Article right “Everyone’s right to life “No one shall be
shall be protected by law. subjected to torture or to
No one shall be deprived of inhuman or degrading
his life save in the treatment or
execution of a sentence of punishment”
a court following this
conviction of a crime for
which this penalty is
provided by law”
Claim must be brought Section 6 of the HRA 1998: public authority
against a public authority (1) “It is unlawful for a public authority to act in a
way which is incompatible with a Convention
right”.
(2) “Subsection 1 does not apply if – (a) as the
result of … primary legislation, the authority
could not have acted differently; or (b) in the
case … made under … primary legislation,
which cannot be read or given effect in a way
which is compatible with Convention rights, the
authority was acting so as to give effect or
enforce those provisions”.
(3) “In this section “public authority” includes – (a) a
, court or tribunal, and (b) any person certain of
whose functions are functions or a public
nature, but does not include … a person
exercising functions in connection with …
Parliament”
Claimant must be a victim of Section 7 of the HRA 1998: the victim test
the breach (1) “A person who claims that a public authority has
acted (or proposes to act) in a way which is
made unlawful by section 6(1) may – (a) bring
proceedings against the authority … in the
appropriate court or tribunal, or (b) rely on the
Convention rights or rights concerned in any
legal proceedings, but only if he is (or would be)
a victim of the unlawful act”
Check any exceptions which The use of force that There is only breach for
define the right within the results in deprivation of life asylum seekers if there is
Article itself is permitted as far as it evidence that:
meets the following - They had to sleep
conditions: on the street long-
- Use of force must term
be no more than - They were
absolutely seriously hungry.
necessary. - They were unable
- Use of force must to satisfy the basic
be in pursuit of requirements of
defence of any hygiene.
person from
unlawful violence, Non-citizens can be
to bring about deported to another
arrest/prevent country if they have been
escape, lawfully convicted of a serious
quell a riot or offence or they are not
insurrection conductive to public
good. There is a breach if
the deportation is to a
country where they would
face real risk of harm.
Consider case law which Da Silva v UK elements for Da Silva v UK elements
defines the extent of the effective investigation (see for effective
right and any procedural above) investigation (see
duties above)
Victim must be able to
participate in the
investigation (Mocanu v
Romania)
Critically evaluate key case law on Article 3
Chahal v United Kingdom (1997)
Government There was an overlap There is also debate
