Questions

1. What obligations does Article 2 impose on a state?
2. Summarise the key principles from the McCann case.
3. What is the ‘investigative duty’ under Article 2?
4. Does Article 2 apply to UK soldiers serving abroad?
5. What rights are protected by Article 8?
6. How can Article 8 be used by individuals challenging deportation?
7. Briefly outline how the courts balance competing rights under Articles 8 and 10.
8. What happens where Article 9 rights conflict with laws on equality?

Answers

1. A duty not to take life intentionally apart from the exceptions in the Article. There are also implied obligations: the duty to protect life by setting up a framework of laws, procedures etc., and the investigative duty.
2. Use of lethal force must be strictly proportionate to the aim of protecting people against unlawful violence, and operations must be planned and controlled by the authorities so as to minimise, to the greatest extent possible, recourse to lethal force.
3. Article 2(1) implies a duty on states to carry out an effective investigation into any death occurring in suspicious circumstances where agents of the state might be responsible.
4. Yes, Article 2 now applies to British soldiers in combat situations. In Smith v MoD [2013] UKSC 41, the Supreme Court held that UK jurisdiction extends to members of the armed forces serving overseas, so the UK had to secure their protection under Article 2, even outside military premises.
5. The right to respect for private and family life, home and correspondence.
6. Where they have married and had a family in the UK, it engages their Article 8 rights, which need to be balanced against the public interest in removing them from the UK.
7. The courts balance competing public interests. The right to privacy has to be balanced against the right of the media to impart information to the public, and the right of the media to impart information to the public has to be balanced against the respect to be given to private life.
8. It is necessary in a democratic society to protect the rights of others and ensure equal treatment, and equality laws are a justified and proportionate protection of the rights of others, even though they can limit the right to manifest religious belief.