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1. What does it mean to refer to Article 8 as a qualified right?
Once it is established that there has been an interference with one of the rights protected by Article 8(1) (e.g. to respect for private life) it remains possible for the state to show that the interference was justified but only in the relation to the terms of Article 8(2).
2. What are the main steps, the process of legal reasoning, a court must undertake when dealing with a claim that Article 8 rights have been interfered with?
- Do the actions of which the applicant is complaining engage, relate to, a freedom, activity, situation etc. that is within the idea of “private and family life”, “home” and “correspondence”? If so
- Has there been an “interference” with this freedom etc.? If so
- Is the interference one for which the state is responsible (as a positive or negative duty)? If so
- Is the interference one that can be justified in terms of Article 8(2) (i.e. the interference has a proper legal basis, it is in pursuit of one of the purposes listed in 8(2) and it serves a pressing social need and, in the instant case, is proportionate (i.e. is necessary in a democratic society)?
3. In the context of Article 8, define ‘positive duties’ and give two examples of their effect.
Positive duties require the state to take particular actions (e.g. pass necessary laws). Negative duties are obligations not to do things (e.g. undertake surveillance without proper safeguards).
One example is the obligation on states to have proper laws regulating surveillance; another is the duty properly to regulate the media. Note that the distinction between positive and negative duties may have little significance – being two sides of the same coin.
4. Give three examples of factors inherent in the idea of ‘private life’.
Autonomy (e.g. over major decisions); gender as it has an impact on identity; personal information.
5. What is a ‘family’ for the purposes of Article 8?
As a situation in which individual life can flourish on the basis of deep social, emotional, and perhaps financial dependency on others. The ECtHR has stressed that it is defined by biological and emotional reality, not by legal form. So a family does not mean the same thing as marriage.
6. In what sense, if at all, does Article 8 guarantee a right to a home?
In the sense of having rights in respect of the home they have; it does not in any direct way place obligations on states to provide homes.
7. In what circumstances might Article 8(1) rights be qualified by action taken in the interests of the economic well-being of the country?
In respect of environmental rights, for example, where the purpose of an interference (e.g. a major airport) is economic growth.
8. How does Article 8 potentially inhibit the executive’s right to deport a person from the United Kingdom?
In two ways. A person may have established a family life in the UK which needs to be respected (i.e. balanced against the reasons for deportation); or a person may be deported to a country in which his or her Article 8 rights would not be respected in a serious way.