The place of the “public interest” in the ECHR

The idea that there is a “public interest” in recognising and protecting rights underlies the very existence of the ECHR and, indeed, fundamental human rights themselves. At its height, the argument here is simply that society as a whole benefits when individuals are safeguarded from excessive State power and are able to live and function as autonomous persons. There are many ways in which the point may be illustrated, but freedom of expression provides one of the best examples: while such expression is not absolute, it is to be greatly valued as it can enliven political debate and the corresponding “public interest” in the democratic process.

The various “public interest” justifications for limiting individual rights then largely take form in the text of the ECHR. The term itself is used expressly only in Article 1 of Protocol 1 (on property rights), but related terms suffuse other parts that guarantee a range of rights. Those parts typically govern so-called “qualified rights” that are to be distinguished from “absolute rights” that cannot be subject to any limitation (e.g., freedom from torture under Article 3 ECHR, or the right to hold a religious belief under Article 9(1) ECHR). Some of the principal qualified rights, and corresponding grounds for limitation, are:

  • Article 5 ECHR and the right to liberty. States can derogate from their obligations in relation to this right where, per Article 15 ECHR, there is a “public emergency threatening the life of the nation”. See, for example, the famous “Belmarsh detainees” case in which the House of Lords accepted the government’s view that post-9/11 international terrorism constituted “a public emergency threatening the life of the nation” whilst at the same time finding that the measures adopted to counter the threat were disproportionate (A v Home Secretary [2004] UKHL 56, considering the Anti-terrorism, Crime and Security Act 2001)

  • Article 6 ECHR and the right to a fair trial. This Article guarantees individuals rights of access to courts that are public, independent and impartial. However, within that, it is well established that rules of evidence may allow for certain information to be withheld from a party where there is a public interest justification for doing. In UK law, this is the realm of public interest immunity.

  • Article 8 ECHR and the right to respect for private and family life, home and correspondence. This is one of the best-known of the qualified rights, and it may be subject to limitation on one or more of the following grounds:  national security; public safety; the economic well-being of the country; the prevention of disorder or crime; the protection of health or morals; and the protection of the rights and freedoms of others. For one of the more controversial sagas in relation to the Article see Gillan v Commissioner of the Police of the Metropolis [2006] UKHL 12, as compared to Gillan and Quinton v United Kingdom [2010] ECHR 28,  (House of Lords holding that stop and search powers under sections 44-46 of the Terrorism Act 2000 were not incompatible with the Article 8 right to privacy; European Court of Human Rights holding that the powers did violate the right)

  • Article 9 ECHR and freedom of thought, conscience and religion. This Article carries two related guarantees that may be illustrated with reference to religion. First, the individual has an “absolute” right to hold a religious belief and to change that belief as he or she chooses. Secondly, the individual has a qualified right to manifest his or her religious belief, for instance by adhering to a particular religious dress code. That qualified right can, however, be subject to limitation for any of the following reasons of public interest: public safety; the protection of public order, health or morals; and the protection of the rights and freedoms of others. For consideration in respect of a school uniform policy see R (Begum) v Headteacher and Governors of Denbigh High School [2006] UKHL 15.

  • Article 10 ECHR and freedom of expression. This right is central to the democratic underpinnings of the Convention and disputes about it frequently come before the European Court of Human Rights. Disputes about it are also commonplace in the UK, where it is central to case law about, among other things, defamatory statements or publications that are argued to amount to a misuse of private information. While the courts often emphasise the particular importance of freedom of expression, it is not an absolute right and limitations may be placed upon it for one or more of the following reasons: national security, territorial integrity or public safety; the prevention of disorder or crime; the protection of health or morals; the protection of the reputation or rights of others; preventing the disclosure of information received in confidence; or maintaining the authority and impartiality of the judiciary. And for an example of national security being used to justify limitations on the right see R v Shayler [2002] UKHL 11 (former member of Secret Services unable to rely upon a freedom of expression defence when facing charges under the Official Secrets Act 1989)

  • Article 14 ECHR and the prohibition of discrimination. Arguments in relation to this right can be made only where the claim of discrimination comes within the “ambit” of one of the other Articles of the ECHR, for instance where an individual claims that he or she is being discriminated against in relation to his or her right to family life. Where there is differential treatment as between an individual and a comparator, the State will have acted unlawfully if it cannot give an objective justification for the differential treatment. Article 14 ECHR does not list grounds of public interest for these purposes, but the case law of the European Court of Human Rights and UK courts gives guidance as to what is permissible. See, e.g., Re Parsons’ Application [2002] NIQB 46, (50/50 recruitment quota under section 46(1) of the Police (Northern Ireland) Act 2000 justified by virtue of the need to increase Catholic representation in the Police Service of Northern Ireland)

  • Article 1, Protocol 1 ECHR and the protection of property. Under this Article, “every natural or legal person is entitled to the peaceful enjoyment of his possessions”. This guarantee is, however, qualified in two ways. First, the text of the Article provides that individuals may be deprived of their rights in the “public interest”. Secondly, the Article affirms that nothing in it “in any way impair(s) the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties”. This can give rise to disputes about, among other things, the lawfulness of licensing decisions: see, e.g., Belfast City Council v Miss Behavin’ Ltd [2007] UKHL 19

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