Unqualified Convention rights

Page 94: Which Convention rights are unqualified?

• The rights in Articles 2 through 7 do not have the express general restrictions that you will find in the provisos to Articles 8 through 11. There is no qualification at all on the rights not to be subjected to torture or to inhuman or degrading treatment or punishment (Art 3), and not to be held in slavery or servitude or required to perform forced or compulsory labour (Art 4).

Interpretation, and following Strasbourg

Page 108: Can you reconcile the rule that the UK courts will ordinarily follow the Strasbourg Court’s interpretations with the decision in Nicklinson that the UK court may find a violation of a right where the Strasbourg Court has decided that the issue is within the margin of appreciation?

• If the UK court finds a violation of a right, where the Strasbourg Court has decided that the issue is within the margin of appreciation, is the UK court departing from the Strasbourg Court’s interpretation of the right? 

The reach of the Art 8 right to private and family life

Page 109: Wasn’t Walker’s private and family life affected by the denial of criminal injuries compensation? If so, would Art 8 of the Convention be engaged, so that he might have a remedy under the Human Rights Act?

• You might say that if anything adversely affects a person, it adversely affects their private and family life. But does everything that affects a person’s private and family life engage Art 8? 
• How would you interpret the strange drafting of Art 8? Is it a right to respect for private and family life? Or a right not to be subject to any official action that has an adverse effect on your private and family life, unless that effect is outweighed by a public interest?

Proportionality and the structure of Convention Rights

Page 110: Are Convention rights constitutional rights?

• You might respond ‘not in the British constitution, because they only have legal effect by Act of Parliament’.
• However, remember what makes a principle a constitutional principle.  A principle is a constitutional principle if:
  • It regulates what constitutions regulate (that is, the framework of government)
  • It does so in the way that constitutions regulate things (that is, by putting issues off the agenda of day-to-day politics).
• Remember that a principle is ‘off the agenda of day-to-day politics’ if the constitutional authorities regulate themselves and each other in a way that is guided by the principle.
• If the same reasoning explains what makes a right a constitutional right, are Convention rights constitutional?
  • Take as an example the right to freedom of expression (Article 10).  Does freedom of expression protect the ability to criticize (and ultimately remove) the government?
  • Do the British constitutional institutions regulate themselves and each other according to the right to freedom of expression?
  • Think about Lord Rodger in Watkins v Home Office [2006] UKHL 17 [58]-[64]. 
    • Lord Rodger surveys the ways in which English judges have proposed that certain rights count as constitutional rights e.g., Lord Justice Steyn described access to the courts as a constitutional right in R v Home Secretary, Ex p Leech [1994] QB 198 (210) (under the title ‘The extent of civil rights of prisoners’).
    • Lord Rodger concludes that ‘the Convention rights form part of our law and provide a rough equivalent of a written code of constitutional rights, albeit not one tailor-made for this country’ [64].