The Strasbourg court has adopted a number of principles of interpretation of the Convention:
Under the Human Rights Act, these principles of interpretation must be taken into account by UK courts and tribunals.
There are a number of concepts relating to the Human Rights Act or the European Convention on Human Rights which you should be familiar with. This section outlines some of the most important of these and gives some indication of their significance.
The Act requires public authorities to act compatibly with the Convention rights. ‘Public authorities’ are not defined exhaustively but the term covers three broad categories:
In some cases it will be difficult to know if a body is a public authority. You will need to take legal advice to clarify this. However, some key characteristics of a public authority include:
The Convention rights are formulated in three broad ways: some are absolute, some are limited and some are qualified.
Absolute rights include the right to protection from torture, inhuman and degrading treatment and punishment (Article 3), the prohibition on slavery and enforced labour (Article 4), and protection from retrospective criminal penalties (Article 7).
Other rights, such as the right to liberty (Article 5), are limited under explicit and finite circumstances, defined in the Convention itself, which provide exceptions to the general right.
Qualified rights include the right to respect for private and family life (Article 8), the right to freedom of expression (Article 10), religion (Article 9) assembly and association (Article 11), the right to the peaceful enjoyment of property (Protocol 1, Article 1) and to some extent the right to education (Protocol 1, Article 2). Although these rights are qualified, interference with them is permissible only if what is done:
This is a crucial concept. Any interference with a Convention right must be proportionate to the intended objective. This means that even if a particular policy or action which interferes with a Convention right is aimed at pursuing a legitimate aim (for example the prevention of crime) this will not justify the interference if the means used to achieve the aim are excessive in the circumstances. Any interference with a Convention right should be carefully designed to meet the objective in question and must not be arbitrary or unfair. You must not use a sledgehammer to crack a nut. Even taking all these considerations into account, in a particular case an interference may still not be justified because the impact on the individual or group is too severe.
Only a person considered a victim can bring proceedings against a public authority under the Act. A victim is someone who is directly affected by the act in question. Victims can include companies as well as individuals and may also be relatives of the victim where a complaint is made about his death. A victim may also be a person who is at risk of being directly affected by a measure.
An organisation or interest group or trade union cannot bring a case unless it is itself a victim. But there is nothing to stop it providing legal or other assistance to a victim.
Governmental organisations, such as local authorities, cannot be victims.
In relation to some Convention rights (particularly those requiring a balance to be struck between competing considerations) the Strasbourg court allows a ‘margin of appreciation’ to the domestic authorities, meaning that it is reluctant to substitute its own views of the merits of the case for those of the national authorities. Some commentators argue that since the margin of appreciation is, strictly speaking, a concept belonging to international law it should not prevent the UK courts examining the merits of a decision, policy or law and the reason for its adoption. Others suggest that the UK courts may develop an analogous doctrine similar to the margin of appreciation. It is not possible, in advance of the Act coming into force, to say precisely how this will work in practice. In some cases the court may conclude that there are insufficient reasons to support the decision, policy or law. However, in others it may be willing to accept the opinion of expert decision makers, such as a government department, health authority or Parliament.
Factors which might influence the court are -
Although the UK courts are required by the Human Rights Act to take into account the Strasbourg jurisprudence on the Convention rights, the interpretation of those rights is likely to develop its own momentum quickly. Also, the Convention is a living instrument whose interpretation changes over time to reflect social attitudes. This means that the outcome of Strasbourg cases in which government departments have been involved in the past is not an infallible guide to what may happen under the Human Rights Act.