Balancing and Restricting Rights

A-Level Law · Human Rights

Balancing and Restricting Rights

Not all human rights are absolute. Many Convention rights are qualified — they can be lawfully restricted by the state where necessary to protect other interests. Understanding when and how rights may be restricted, and how courts balance competing rights, is essential for A-Level Law.

Categories of Rights (Revisited)

Absolute Rights

Absolute rights cannot be restricted, limited, or derogated from under any circumstances, even in times of war or national emergency.

Article 3 ECHR — prohibition of torture and inhuman or degrading treatment or punishment
Ireland v UK [1978] — the ECtHR held that the UK's use of "five techniques" (wall-standing, hooding, subjection to noise, sleep deprivation, deprivation of food and drink) against internees in Northern Ireland constituted inhuman and degrading treatment (though not torture)
Chahal v UK [1996] — the ECtHR held that the UK could not deport a person to a country where there were substantial grounds for believing they would face torture, regardless of the national security risk they posed. Article 3 is absolute — there is no balancing exercise
Gafgen v Germany [2010] — police threatened a kidnapping suspect with violence to find a missing child. The ECtHR held this violated Art. 3, even though the purpose was to save a child's life

Article 4 — prohibition of slavery and forced labour (the prohibition of slavery is absolute; "forced or compulsory labour" has defined exceptions in Art. 4(3))

Limited Rights

Limited rights can be restricted only in the specific circumstances set out in the right itself.

Article 5 — right to liberty and security. Art. 5(1)(a)–(f) lists the exhaustive grounds on which a person may be deprived of liberty:
Lawful detention after conviction by a competent court (Art. 5(1)(a))
Lawful arrest on reasonable suspicion of committing an offence (Art. 5(1)(c))
Detention of persons of unsound mind, alcoholics, drug addicts, or vagrants (Art. 5(1)(e))
Lawful detention to prevent unauthorised entry into the country (Art. 5(1)(f))

A v Secretary of State for the Home Department [2004] (the Belmarsh case) — the House of Lords held that the indefinite detention without trial of foreign terror suspects under the Anti-Terrorism, Crime and Security Act 2001 was incompatible with Art. 5 (and Art. 14 — discrimination, because only foreign nationals were detained). Lord Hoffmann stated: "The real threat to the life of the nation... comes not from terrorism but from laws such as these."

Qualified Rights

Qualified rights can be restricted where the restriction is:

1. Prescribed by law (or "in accordance with the law") — the restriction must have a legal basis that is accessible and foreseeable

2. In pursuit of a legitimate aim — each Article lists the permissible aims (e.g. national security, public safety, prevention of disorder or crime, protection of health or morals, protection of the rights and freedoms of others)

3. Necessary in a democratic society — the restriction must be proportionate to the legitimate aim pursued; there must be a pressing social need

The main qualified rights are:

Article	Right	Legitimate aims for restriction (examples)
Art. 8	Private and family life, home, correspondence	National security, public safety, economic well-being, prevention of crime, protection of health/morals, rights of others
Art. 9	Freedom of thought, conscience, religion	Public safety, protection of public order/health/morals, rights of others
Art. 10	Freedom of expression	National security, territorial integrity, public safety, prevention of crime, protection of health/morals, reputation/rights of others, preventing disclosure of confidential information, maintaining authority of judiciary
Art. 11	Freedom of assembly and association	National security, public safety, prevention of crime, protection of health/morals, rights of others

The Proportionality Test

When a qualified right is restricted, the court must assess whether the restriction is proportionate — whether it strikes a fair balance between the individual's rights and the legitimate aim pursued.

The proportionality test involves four stages (from Bank Mellat v HM Treasury (No. 2) [2013], per Lord Reed):

1. Is the objective of the measure sufficiently important to justify the limitation of a fundamental right?

2. Is the measure rationally connected to the objective?

3. Could a less intrusive measure have been used without unacceptably compromising the objective?

4. Has a fair balance been struck between the rights of the individual and the interests of the community?

Examples of proportionality analysis:

Handyside v UK [1976] — the UK convicted the publisher of "The Little Red Schoolbook" (containing sexual advice for children) under the Obscene Publications Act 1959. The ECtHR held that the interference with Art. 10 (freedom of expression) was proportionate — the UK had a margin of appreciation to determine what was necessary for the protection of morals

Campbell v Mirror Group Newspapers [2004] — the model Naomi Campbell sued the Daily Mirror for publishing photographs of her leaving a Narcotics Anonymous meeting. The House of Lords balanced Art. 8 (her right to privacy regarding health treatment) against Art. 10 (the newspaper's freedom of expression). The majority held that the publication of the photographs went beyond what was justified — Art. 8 prevailed in the circumstances

S and Marper v UK [2008] — the ECtHR held that the UK's blanket retention of DNA and fingerprints of persons acquitted or not charged violated Art. 8. The interference was disproportionate — there was no distinction between those convicted and those innocent. This led to the Protection of Freedoms Act 2012, which required the destruction of samples from unconvicted individuals

The Margin of Appreciation

The margin of appreciation is a doctrine developed by the ECtHR that gives national authorities a degree of discretion in how they implement Convention rights.

Rationale

National authorities are better placed than an international court to assess local needs and conditions
Respect for democratic decision-making — the elected legislature has made choices reflecting the values of its society
Different European states have different moral, cultural, and religious traditions

Width of the Margin

The margin of appreciation varies:

Wide margin (more discretion for the state):

Where there is no European consensus on the issue — A, B and C v Ireland [2010] (abortion restrictions — wide margin because of the lack of consensus across Council of Europe states at the time)
Matters of national security — Klass v Germany [1978]
Matters involving morals — Handyside v UK [1976]
Economic and social policy — Stec v UK [2006]

Narrow margin (less discretion):

Where there is a strong European consensus — Goodwin v UK [2002] (rights of transgender persons — the ECtHR noted a "clear and uncontested evidence of a continuing international trend" toward legal recognition)
Intimate aspects of private life — Dudgeon v UK [1981] (criminalisation of homosexual acts in Northern Ireland was disproportionate — narrow margin for interference with sexual autonomy)
Core political expression — Lingens v Austria [1986] (political speech receives the strongest protection under Art. 10)

Criticism of the Margin of Appreciation

It is vague and unpredictable — the width of the margin varies from case to case with no clear criteria
It can allow states to avoid their obligations by claiming cultural or moral differences
It may lead to inconsistent protection across different countries
It is an international law doctrine — UK courts do not apply it directly (they apply the domestic proportionality test instead, though they may give appropriate weight to Parliament's and the executive's judgment)

Balancing Competing Rights

The most challenging aspect of human rights law arises where two Convention rights conflict. The court must balance the competing rights, as neither takes automatic priority.

Art. 8 vs Art. 10 — Privacy vs Expression

This is the most common clash. The principles from Re S (A Child) [2005] (Lord Steyn):

1. Neither Article has presumptive priority over the other

2. Where the values under the two Articles conflict, an intense focus on the comparative importance of the specific rights being claimed is necessary

3. The court must consider the justifications for interfering with or restricting each right

4. The proportionality test must be applied to each

Key cases:

Von Hannover v Germany [2004] — Princess Caroline of Monaco's Art. 8 privacy rights were violated by paparazzi photographs taken in public places. The photographs did not contribute to a debate of general interest — they were purely about her private life. Art. 8 prevailed over Art. 10.

Axel Springer AG v Germany [2012] — the ECtHR identified criteria for balancing Art. 8 and Art. 10:

1. Whether the publication contributes to a debate of general interest

2. How well-known is the person concerned, and what is the subject of the report?

3. Prior conduct of the person concerned (have they courted publicity?)

4. Method of obtaining information and its veracity

5. Content, form, and consequences of the publication

6. Severity of the sanction imposed on the publisher

PJS v News Group Newspapers [2016] — the Supreme Court granted an injunction to protect the privacy of a person involved in an extramarital relationship, even though the information was already widely available online. The court held that publication would cause additional harm — Art. 8 outweighed Art. 10 in the specific circumstances.

Art. 9 vs Art. 10 — Religion vs Expression

Otto-Preminger-Institut v Austria [1994] — Austria's seizure of a film satirising Christianity was justified under Art. 10(2) to protect the religious feelings of others (Art. 9). The ECtHR gave Austria a wide margin of appreciation
Eweida v UK [2013] — a British Airways employee was prevented from wearing a visible cross at work. The ECtHR held that the UK had failed to protect her Art. 9 right — BA's corporate image policy was a disproportionate restriction

Art. 8 vs Art. 2 (and public safety)

Osman v UK [1998] — the ECtHR held that Art. 2 (right to life) may impose a positive obligation on the state to take preventive measures to protect an individual whose life is at risk from the criminal acts of another, where the authorities knew or ought to have known of a real and immediate risk

Derogation and Reservation

Derogation (Art. 15 ECHR)

In time of war or other public emergency threatening the life of the nation, a state may derogate (temporarily opt out) from certain Convention rights — but never from Art. 3 (torture), Art. 4(1) (slavery), or Art. 7 (no punishment without law).

The UK derogated from Art. 5 after 9/11 to allow detention without trial under the Anti-Terrorism, Crime and Security Act 2001. This derogation was successfully challenged in A v Secretary of State [2004] — the House of Lords held that the measures were disproportionate and discriminatory

Reservation (Art. 57 ECHR)

A state may make a reservation when ratifying the Convention, excluding the application of a particular provision to the extent that a domestic law is incompatible. The UK made a reservation to Protocol 1, Art. 2 (right to education) — accepting it only insofar as compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure.

Evaluation

The framework of absolute, limited, and qualified rights is logically coherent and allows for flexibility
The proportionality test provides a structured approach to balancing rights against public interests
However, proportionality involves value judgments — different judges may reach different conclusions on the same facts
The margin of appreciation gives states flexibility but risks inconsistent protection
The dialogue between UK courts and the ECtHR (e.g. Horncastle) enriches the development of rights
Balancing competing rights (especially Art. 8 vs Art. 10) remains inherently difficult — there are no mechanical rules
The current debate about replacing the HRA with a British Bill of Rights raises questions about whether qualified rights would be differently balanced

Exam approach:

Identify whether the right is absolute, limited, or qualified
For qualified rights, apply the three-stage test: prescribed by law → legitimate aim → necessary in a democratic society (proportionate)
Use the proportionality test from Bank Mellat where applicable
Where two rights conflict, apply the Re S / Axel Springer balancing framework
Discuss the margin of appreciation and its width in the context of the specific right
Evaluate whether the current balance between rights and restrictions is appropriate

Balancing and Restricting Rights