Learning Outcomes
After reading this article, you will be able to identify and explain the main rights protected by the European Convention on Human Rights (ECHR) as incorporated into UK law by the Human Rights Act 1998 (HRA). You will understand the distinction between absolute, limited, and qualified rights, the obligations of public authorities, and the mechanisms for enforcing these rights in UK courts. You will also be able to apply these principles to SQE1-style scenarios.
SQE1 Syllabus
For SQE1, you are required to understand the Human Rights Act 1998 and the European Convention on Human Rights, with particular focus on:
- the main rights and freedoms protected by the ECHR and their classification as absolute, limited, or qualified rights
- how the HRA 1998 incorporates ECHR rights into UK law and the obligations on public authorities
- the enforcement of ECHR rights in UK courts, including remedies and the role of declarations of incompatibility
- the distinction between state and private obligations, and the concept of horizontal effect
- the principles of proportionality and legitimate aims in the context of qualified rights.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- Which articles of the ECHR are classified as absolute rights, and what does this mean for state interference?
- What is the effect of a declaration of incompatibility issued by a UK court under the Human Rights Act 1998?
- How does the HRA 1998 require UK courts to interpret legislation in relation to ECHR rights?
- What is the difference between a qualified right and a limited right under the ECHR?
Introduction
The European Convention on Human Rights (ECHR) is an international treaty that protects fundamental rights and freedoms. The Human Rights Act 1998 (HRA) incorporates most ECHR rights into UK law, allowing individuals to enforce these rights in domestic courts. Understanding the classification of rights, the obligations of public authorities, and the mechanisms for enforcement is essential for SQE1.
Key Rights under the ECHR
The ECHR sets out a range of rights, each with different levels of protection and possible limitations. The HRA 1998 makes these rights enforceable in UK courts.
Classification of Rights
ECHR rights are divided into three categories:
- Absolute rights: Cannot be limited or interfered with under any circumstances.
- Limited rights: Can be restricted only in specific, narrowly defined situations.
- Qualified rights: Can be restricted if certain conditions are met, such as being prescribed by law, pursuing a legitimate aim, and being necessary in a democratic society.
Key Term: absolute right
An ECHR right that cannot be lawfully limited or interfered with by the state under any circumstances.Key Term: limited right
An ECHR right that can only be restricted in specific, clearly defined situations set out in the Convention.Key Term: qualified right
An ECHR right that may be restricted if the restriction is prescribed by law, pursues a legitimate aim, and is proportionate.
Main ECHR Rights Incorporated by the HRA 1998
Article 2: Right to Life
Article 2 protects the right to life. The state must not intentionally take life except in very limited circumstances (e.g., self-defence, lawful arrest, or quelling a riot using no more force than absolutely necessary). The state also has a positive duty to protect life and to investigate deaths involving state responsibility.
Article 3: Prohibition of Torture, Inhuman or Degrading Treatment
Article 3 is an absolute right. It prohibits torture and inhuman or degrading treatment or punishment in all circumstances, including emergencies.
Article 4: Prohibition of Slavery and Forced Labour
Article 4 prohibits slavery and servitude absolutely. It also prohibits forced or compulsory labour, with exceptions for prison work, military service, emergencies, and normal civic obligations.
Article 5: Right to Liberty and Security
Article 5 is a limited right. It protects against arbitrary detention. Lawful detention is permitted only in specific cases (e.g., after conviction, lawful arrest, detention of minors, or mental health detention) and must follow due process.
Article 6: Right to a Fair Trial
Article 6 guarantees a fair and public hearing within a reasonable time by an independent and impartial tribunal. It includes the presumption of innocence, the right to legal representation, and minimum rights for those charged with criminal offences.
Article 7: No Punishment Without Law
Article 7 is an absolute right. It prohibits retrospective criminal laws and heavier penalties than those in force at the time of the offence.
Article 8: Right to Respect for Private and Family Life
Article 8 is a qualified right. It protects private life, family life, home, and correspondence. Interference is permitted only if prescribed by law, pursues a legitimate aim (such as national security or public safety), and is proportionate.
Article 9: Freedom of Thought, Conscience, and Religion
Article 9 is absolute in relation to holding beliefs, but qualified in relation to manifesting beliefs (e.g., worship, teaching, practice). Restrictions must be lawful, pursue a legitimate aim, and be proportionate.
Article 10: Freedom of Expression
Article 10 is a qualified right. It protects freedom to hold opinions and to receive and impart information. Restrictions are allowed for reasons such as national security, public safety, or protection of others’ rights, if proportionate.
Article 11: Freedom of Assembly and Association
Article 11 is a qualified right. It protects peaceful assembly and association. Restrictions are allowed for legitimate aims and must be proportionate.
Article 12: Right to Marry
Article 12 is an absolute right, subject to national laws on marriage.
Article 14: Prohibition of Discrimination
Article 14 prohibits discrimination in the enjoyment of ECHR rights. It is not a free-standing right; it applies only in relation to other Convention rights.
Key Term: declaration of incompatibility
A formal statement by a UK court that a provision of primary legislation is incompatible with an ECHR right. It does not invalidate the legislation but signals to Parliament that amendment is needed.
Enforcement and Remedies under the HRA 1998
Obligations on Public Authorities
Section 6 HRA makes it unlawful for public authorities to act incompatibly with ECHR rights unless primary legislation requires otherwise.
Key Term: public authority
Any body or person carrying out functions of a public nature, including government departments, local authorities, police, and courts.
Interpretation of Legislation
Section 3 HRA requires courts to interpret legislation, so far as possible, in a way that is compatible with ECHR rights.
Declarations of Incompatibility
If a court cannot interpret legislation compatibly with an ECHR right, it may issue a declaration of incompatibility under section 4 HRA. This does not strike down the law but puts political pressure on Parliament to amend it.
Remedies
Courts may grant remedies for breaches of ECHR rights, including damages, injunctions, or quashing orders, where necessary to afford just satisfaction.
Proportionality and Legitimate Aim
For qualified rights, any restriction must be:
- Prescribed by law
- Pursue a legitimate aim (e.g., national security, public safety, prevention of crime, protection of health or morals, protection of others’ rights)
- Be necessary in a democratic society (proportionate)
Key Term: proportionality
The requirement that any restriction of a qualified ECHR right must not go further than necessary to achieve a legitimate aim.
Horizontal Effect
Although the HRA 1998 applies directly to public authorities, courts (as public authorities) must interpret and develop the common law compatibly with ECHR rights. This means ECHR rights can affect disputes between private individuals (horizontal effect), especially in areas such as privacy and freedom of expression.
Worked Example 1.1
A local authority bans a peaceful protest in a public park, citing public safety. The organisers claim a breach of Article 11 ECHR. Is the ban lawful?
Answer: Article 11 is a qualified right. The ban is only lawful if prescribed by law, pursues a legitimate aim (public safety), and is proportionate. If the ban is broader than necessary or less restrictive measures could be used, it may breach Article 11.
Worked Example 1.2
A statute allows indefinite detention of foreign nationals without trial. Is this compatible with the ECHR?
Answer: Article 5 (right to liberty) is a limited right. Indefinite detention without trial is not permitted except in specific, narrowly defined circumstances. Such a law would likely be incompatible with Article 5 and could lead to a declaration of incompatibility.
Worked Example 1.3
A newspaper publishes private medical information about a celebrity. The celebrity sues for breach of Article 8 ECHR. How will the court decide?
Answer: The court will balance Article 8 (privacy) against Article 10 (freedom of expression). Neither right is absolute. The court will consider whether publication was in the public interest and whether the interference with privacy was proportionate.
Exam Warning
Restrictions on qualified rights must always be justified by law, legitimate aim, and proportionality. Failure to apply the proportionality test is a common error in SQE1 questions.
Revision Tip
For SQE1, memorise which rights are absolute, limited, or qualified, and the key requirements for restricting qualified rights.
Key Point Checklist
This article has covered the following key knowledge points:
- The Human Rights Act 1998 incorporates most ECHR rights into UK law, making them enforceable in domestic courts.
- ECHR rights are classified as absolute, limited, or qualified, affecting how and when they can be restricted.
- Public authorities must act compatibly with ECHR rights unless primary legislation requires otherwise.
- UK courts must interpret legislation compatibly with ECHR rights where possible; otherwise, they may issue a declaration of incompatibility.
- Qualified rights can be restricted only if the restriction is lawful, pursues a legitimate aim, and is proportionate.
- ECHR rights can affect disputes between private parties through the horizontal effect of the HRA 1998.
Key Terms and Concepts
- absolute right
- limited right
- qualified right
- declaration of incompatibility
- public authority
- proportionality
