There are 3 types of convention rights:
Absolute (or nearly so!)
eg art 3
Limited (narrow exceptions)
eg art 5
Qualified (broad exceptions)
eg arts 6, 8, 9, 10, 11, 14 and 1, 2 of the 1st Protocol
Absolute rights are short and to the point, and they admit of no ‘manoeuvring around’, at least not on the surface. It turns out though, that even the clearest Convention rights do have to be interpreted, and if they have ambiguous words in them, such as ‘inhuman’ and ‘degrading’, then those have to be interpreted by the judge, who will always, it is suggested, be mindful of the context in which the treatment has been meted out.
Physical restraint is the perfect example. If it is done in the best interests of someone who is self-harming, but who is known to the authorities as having a learning disability, or other mental impairment, and a tendency to self-harm, restraint will never be inhuman or degrading, so long as it is done competently and with the minimum of force, and after other routes to defusing the situation have been tried. But if it were to be done for convenience, in order to get a learning disabled person ready for the bus home from day care, on time, it would be a different matter.
Limited Human Rights are those which having conferred a right or a freedom, then set narrow explicit limitations to the exercise of that right.
The right to liberty, if it were unlimited, would mean that no-one could be put in prison, no matter what they had done, and it would mean that secure accommodation was unacceptable, regardless of risk.
As it is, article 5 has explicit exceptions in article 5(1)(a-f) and includes exceptions for persons of unsound mind, persons who are posing a public health risk, persons who are awaiting extradition. It was the wording of article 5(1)(f) regarding immigrants which recently caught the government on the hop over the detention of fast-track asylum seekers in Oakington Reception Centre. Such detention did not come within the wording of the exception, and the exception would not be stretched by the court.
Detention in secure accommodation for children, so long as it is in accordance with the statutory scheme in the Children Act, has already been found to pass the test of compliance with Human Rights. It is for the purpose of ‘supervision of a broadly educational nature’, which brings it within article 5(1)(d) of the Convention, an exception to the right to liberty.
Qualified Human Rights are those ones which might fairly be described as less than clear cut from the outset, but to which there is also a set of broad, very public interest-orientated exceptions. A public authority is allowed to put up one or more of the legitimate aims covered by the exceptions to the right in question, as having been in play, with regard to its action or decision, and then go on to justify its action, decision, or omission with regard to what is necessary in a democratic society (it helps therefore to have documented why other methods won’t achieve the authority’s aim) and proportionate to the mischief it is sought to prevent.
Rights are supposed to come with responsibilities – Human Rights are not rights unlimited.
In relation to limited and qualified rights, Convention States have traditionally been given fairly wide margins of appreciation in the past by the ECtHR, for fear of losing the support of Member States. So long as a permitted interference with the right is lawful under existing law, serves a legitimate purpose, is necessary in a democratic society, and is not discriminatory, the action will usually be upheld as compatible with human rights.
Exploring these concepts in the UK courts requires judges to scrutinise the actions of public authorities, a bit more deeply than their hitherto strictly supervisory jurisdiction allowed. Unreasonableness is no longer the test of what is lawful in judicial review, if the challenge is brought on human rights grounds. However, notwithstanding that the Court now has to say whether the judges themselves think that the action or decision was proportionate to the problem sought to be addressed, it is still envisaged that in most instances the Courts will respect the better qualifications of the decision maker to have reached a legitimate conclusion, or remit the matter back to the local authority or other public body to make the decision all over again, this time compatibly with human rights, if there was some unfairness which could be cured. Hence public bodies are unlikely to be simply overridden by the courts, acting as if they were appeal courts in all cases.
It is also highly probable that Courts will continue to give full weight to the policy choice of Parliament in many cases to give decision-making powers to certain public bodies because of the extreme sensitivity of the function concerned (eg. child protection work) or the range of issues which have to be taken into consideration, inevitably beyond a judge’s experience and understanding. The judges will have to bear in mind that their scrutiny of compatibility with Convention rights will affect public authorities with very much more local concerns, than States or national governments can possibly have in mind, and make allowances for that difference.
It is for that reason that commentators have said that even though the concept of a ‘margin of appreciation’ may not protect public bodies from human rights challenges in the UK courts, the Courts’ traditional reluctance to interfere with otherwise legal, discretionary or expert ‘clinical’ decisions, subject only to unreasonableness or unfairness, will continue to provide a buffer against an excess of speculative claims.
In relation to proportionality, not all rights are given equal weight in the ECtHR jurisprudence, and local conditions can affect the degree to which an interference might be justified. The more important a right is to the maintenance of a free and plural society, the tougher the test will be for the need for the interference. In a crisis, or perhaps a situation of reasonably perceived risk, an otherwise unacceptable incursion can become proportionate. Generally speaking, a rule of thumb will be that taking steps no greater than is absolutely essential to meet a necessary policy objective, will be regarded as proportionate.