ADMINISTRATIVE LAW AND HUMAN RIGHTS
COURSE SUMMARY
TOPIC 1: INTRODUCTION TO HUMAN RIGHTS
Human rights are generally accepted as meaning those fundamental rights to which a person is entitled simply
by virtue of being human. Unlike other legal rights, they usually cannot be removed by the state.
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 World
War II.
The Convention is an international Treaty which has 46 state parties. Belarus is the only European state that
has not signed it.
Russia was a signatory but, as a result of the war in Ukraine, Russia ceased to be a member of the Council of
Europe in March 2022 and will cease to be a contracting party to the ECHR from 16 September 2022.
UK ratified the Convention in 1951: 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.
Procedure to bring a case before the ECtHR:
State applications: 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: Individuals who allege that their Convention rights have been
breached may start their own proceedings against the UK in Strasbourg. However, it must be shown
that any domestic remedies which exist have first been exhausted.
—> Two-Stage process:
Two main stages in bringing a case: the admissibility stage and the merits stage.
Cases covered by well-established case law: 3-member committee, which will rule on admissibility
and, where the case is admissible, give a final decision or judgment.
Other cases: Chamber of 7 judges, which will rule on admissibility and give judgment by a majority.
o The Chamber’s judgment will become final only after three months, during which the
applicant may ask for the case to be referred to the Grand Chamber for fresh consideration.
—> Remedies:
The Court may award compensation or require the state to change its law.
NB. individual decisions are only binding as a matter of international law and have no direct binding force in
domestic law.
The Committee of Ministers of the Council of Europe is responsible for ensuring that states comply with
judgments of the ECtHR.
—
General Principles under the ECHR:
Subsidiarity Principle which states that human rights should primarily be protected at national level and the system
under the ECHR is subordinate to this.
Margin of Doctrine reflects the fact that national authorities are in principle better placed than the ECtHR to
appreciation evaluate local needs and conditions.
NB. state’s margin of appreciation is subject to the supervision of the ECtHR.
Handyside v UK: ECtHR held that the UK had not breached Article 10 (freedom of expression) when
its obscenity laws prohibited publication of a sex education manual for children.
SAS v France: claimant challenged a ban on wearing clothing designed to conceal the face in public on
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, the basis that this breached the right to respect for private life (Article 8) and the right to manifest
religion or belief (Article 9). The ECtHR stated that, as views on this could differ in a democratic
society and as there was little agreement on this subject within member states, the state had a wide
margin of appreciation. There was no violation of either Article 8 or 9 as the ban could be justified on
the basis of upholding the rights and freedoms of others.
Living ECHR is a ‘living instrument’: the understanding of human rights may change with evolving social
instrument conditions.
Thus, the content of the rights may change over time as the ECtHR reinterprets the ECHR to keep it
attuned to changing values. —> no strong system of precedent.
Absolute, Limited and Qualified rights:
(i) Absolute rights: These rights can never be interfered with in any circumstances whatsoever. States must
uphold them at all times.
(ii) Limited rights: These rights can only be limited in clearly defined and finite situations.
(iii) Qualified rights: 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.
Distinction between absolute and limited:
rights which list exceptions which help to define the rights; these are absolute rights as any conduct
which falls within an exception does not constitute an interference;
rights which list specific and finite situations in which they can be interfered with; these are limited
rights as there are set circumstances where an interference is permissible.
Articles 2–7 (absolute and limited rights) cover the most fundamental human rights and contain either no
exceptions whatsoever or narrow express exceptions.
Articles 8–11 and Article 1 of Protocol 1 cover qualified rights which can be overridden in the public
interest.
Convention right Absolute Limited Qualified
Article 2 (right to Absolute. Note that deprivation of life
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)
Article 4 (freedom Absolute. Note that certain activities are
from slavery, etc) excluded from the scope of compulsory
labour and so do not constitute an
interference with this right
Article 5 (liberty Limited – contains
and security of the exceptions in
person) relation to lawful
arrest and detention
Article 6 (fair trial) Absolute as to a fair trial Limited in relation
to the trial being in
public
Article 7 Absolute. Note that Article 7 does not
(punishment preclude the trial and punishment of
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, according to acts that are criminal according to
existing law) general principles recognised by
civilised nations
Article 8 (respect Qualified
for private and
family life)
Article 9 (freedom Absolute in relation to freedom of Qualified in relation
of thought, etc) thought, etc to manifestation of
freedom in worship,
teaching, practice or
observation
Article 10 Qualified
(freedom of
expression)
Article 11 Qualified
(freedom of
assembly and
association)
Article 12 (right to Absolute, but according to national law
marry) governing the exercise of the right
Article 1 of Qualified
Protocol 1 (right to
peaceful enjoyment
of possessions)
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QUALIFIED RIGHTS:
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).
In addition, a restriction may only be relied upon if it is prescribed by law, has a legitimate aim and
is necessary in a democratic society.
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.
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 their conduct.
Malone v UK (1985): 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.
R (on the application of Purdy) v DPP [2009]: The existing law was insufficiently clear about the
factors the DPP would take into account, and therefore a person could not accurately predict if they
were likely to be prosecuted with assisting another’s suicide.
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:
(a) the interests of national security, public safety or the economic wellbeing of the country (eg
Article 8);
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, (b) the prevention of disorder or crime (eg Articles 8 and 10);
(c) the protection of health or morals (eg Articles 8 and 10);
(d) the protection of the rights or freedoms of others (eg Article 8). The scope of this legitimate
aim is not entirely clear. Whilst it undoubtedly covers the rights of others under the ECHR, it is
wider than this.
In Chassagnou v France (1999) the ECtHR stated that, where the right was not one
within the ECHR, it would only be covered if it amounted to an ‘indisputable imperative’.
(e) the prevention or disclosure of information received in confidence (eg Article 10);
(f) maintaining the authority and impartiality of the judiciary (eg Article 10).
Necessary in a democratic society:
Qualifications are usually required to be ‘necessary in a democratic society’ (eg Articles 8 and 10).
This means the following:
(a) There must be a ‘pressing social need’ (rather than an absolute necessity).
(b) The interference must be proportionate. This means that in order to justify the restriction,
public authorities may have to show that they have chosen methods of achieving legitimate aims
which do not go further than is necessary.
The qualities of a ‘democratic society’ include tolerance of minority opinions and lifestyles. So the
fact that a majority in a state opposes homosexuality does not excuse a law which criminalises
homosexual conduct in private contrary to Article 8 (R v Dudgeon (1983)).
Protections from discrimination:
Article 14:
all of the rights and freedoms set out in the ECHR must be protected and applied without
discrimination on any ground such as sex, race, colour, language, religion, political or other opinion,
national or social origin, association with a national minority, property, birth or other status.
Not ‘free-standing’: 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.
Article 14 covers both direct and indirect discrimination.
Derogations:
Under Article 15 of the ECHR, a state may derogate from part of the Convention ‘in time of war or other
public emergency threatening the life of the nation’.
Any derogation must only be to the extent that is strictly necessary, and no derogation is possible in respect
of Articles 3 (torture, etc), 4(1) (slavery), or 7 (retrospective criminal offences), or from Article 2 (right to
life) except in respect of deaths resulting from lawful acts of war.
Section 14 of the Human Rights Act 1998 creates a statutory procedure for enacting a derogation as part of
UK law, and s 1 states that Convention rights are to be read subject to any such derogation.
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THE HUMAN RIGHTS ACT:
Section 1 incorporates and gives effect to the Convention rights. These are Articles 2–12 and 14 ECHR, Articles
1–3 of the First Protocol and Article 1 of the Thirteenth Protocol. They are set out in Sch 1 to the HRA
1998.
Section 2 domestic courts must ‘take into account’ judgments 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.’ This applies to past and future legislation.
Controversy on wide interpretation given to s 3: Ghaidan v Godin-Mendoza [2004]: HL interpreted the
words ‘as his or her wife or husband’ to include same-sex couples.
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