Chapter 7 Guidance on answering the exam questions

1. Is it possible, compatibly with the Convention, to have laws which restrict the political activities of groups and individuals whose aim is to impose an authoritarian government on a country?

• This question refers to how the ECHR deals with the age-old dilemma of Liberalism: how to deal with the illiberal and intolerant in ways which do wholly overwhelm the values of a liberal society. You will need to disclose knowledge and understanding of Article 17 as well as the qualified rights such as Articles 10 and 11.
• An historical background to the ECHR, how it arose of totalitarianism could be a good, contextual, start.
• Consider, next, the point that democracy is seen as the only political system capable of supporting human rights. Discuss the Convention conception of democracy.
• Consider how democratic politics is supported under the ECHR; e.g. by the rights to freedom of expression and freedom of association but note that these (Articles 10 and 11) are both qualified rights.
• Therefore, one approach in the ECHR is for laws that restrict political activity in favour of totalitarian states to be tested against the criteria for justified interference found in the second paragraphs of Articles 10 and 11. This enables a court to test the state’s justifications for such laws against the Convention standards of legality, legitimate purpose and social necessity and proportionality. In many ways, because it directly confronts the question of the applicant’s rights, this approach is favoured by the ECtHR (as in Paksas v Lithuania or Refah Partisi v Turkey for instance).
• The alternative is avoid considering the extent of the applicant’s rights by rendering them inadmissible under Article 17 – which denies the right of any one to use their Convention rights as a platform for denying the rights of others. This has been used in the context, for example, of holocaust denial, some forms of racist speech and violent Islamic militancy.
• In conclusion you can say that it is possible to restrict political activity on the grounds indicated by the question but that the preferred way would be to use the qualifying clauses of Articles 10 and 11, which allow the rights argument to be fully confronted, rather than Article 17 which should really only be used against those actively seeking to undermine democracy, the rule of law and human rights.

2. Proposals are made under which only women candidates can be chosen for at least half of the seats contested by a political party. Men candidates will be barred. Men who lose out complain that they have been discriminated against in respect of their rights to stand for election found in Article 3 of the First Protocol.

Advise some disappointed potential male candidates on whether Article 14 might be of assistance to them.

• This is a question about the scope and reach of Article 14.
• The initial point is that any political party which adopts such a policy will have to act compatibly with the law and, though the parties may not be “public authorities” (section 6 HRA), they must be acting in accordance with whatever exceptions to non-discrimination between the sexes is allowed by UK statute law. Under section 3 HRA, of course, this statute law must be read, so far as is possible, to ensure it can only authorise actions which are compatible with Convention rights.
• Article 14 requires non-discrimination, but only in the application of Convention rights (it does not provide a general non-discrimination right). The right in question is the right to stand in an election found, by implication, in Article 3 of Protocol 1. An important point is that laws which allow an all-women shortlist may well not breach Article 3 – since Article 3 is a right that allows reasonable exceptions. However, Article 14 can apply in respect of laws which interfere with action in the “ambit” of a Convention right. On this ground Article 14 with Article 3 may be relevant.
• The alleged discrimination is on grounds of gender which is expressly given in the text and so you do not need to discuss the question of “other status”.
• The central point is justification. Article 14 allows differences in treatment (e.g. between men and women in broadly the same situation – potential election candidates) so long as it is justified. Any discriminatory policy must be objectively and reasonably justified.
• So a court will undertake a balancing exercise. The intensity of judicial scrutiny (i.e. the extent of judicial analysis of the justification) will depend on the issue. Where the difference of treatment is based on a personal characteristic, such as gender, which is not a matter of individual choice, the scrutiny is likely to be intensive.
• Nevertheless, in this situation, the historic under-representation of women in the legislature coupled with the strong sense of the need for the full diversity of society to be recognised in the make-up of the legislature might lead a court to find that the matter is justified. On the other hand is the argument that, for whatever reason, this policy involves direct discrimination against the relevant men whose rights to equal treatment are trumped not by some other person’s rights but by a collective goal. This is a form of trade-off the law does not usually allow.
• In your conclusion you might try to resolve, in the way you see fit, this kind of dilemma. The important point is to demonstrate, through your discussion of Article 14, how it is a dilemma that Article 14 brings forth.