When limitations on rights are lawful

Where a public authority wishes to limit rights for any of the above reasons, the corresponding Articles of the ECHR also require that any public authority action adheres to the principles of legality and proportionality. These principles act as a brake on the potential abuse of governmental power, as they ensure that there are minimum levels of transparency and consistency in public decision-making precisely when it is needed most. A public authority cannot therefore arbitrarily impose limits on rights just because it considers that there is a “public interest” justification for doing. It must instead do so in a manner that is consistent with core elements of the rule of law.  

The nature of the legality principle can be illustrated with reference to the second paragraph of Article 8 ECHR, which provides that the pursuit of the grounds of public interest in the Article must be “in accordance with the law” (see too, e.g., Articles 9(2) and 10(2)). This means not only that any limitation on rights must be underpinned by legal authorisation but also that the source of the authorisation is accessible to those individuals who may wish to enquire as to the basis of a public authority’s powers. The principle also requires that there is a degree of certainty in domestic legal structures so that an individual may determine the probable consequences of action they may take, thereby bringing into play questions of the broader public interest. Indeed, while the European Court of Human Rights has recognised that absolute certainty cannot be guaranteed, it has emphasised the need for at least some degree of predictability. As the European Court of Human Rights put it in the famous Malone case on the interception of communications in the UK:

“(T)he requirement of forseeability cannot mean that an individual should be enabled to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly. Nevertheless, the law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered (to interfere)” (Malone v United Kingdom [1985] 7 EHRR, 14, 40)

The proportionality principle, in turn, is concerned with whether a measure adopted by a public authority strikes the appropriate balance between the pursuit of a public interest and the limitations that this imposes upon the rights of an individual. There are various formulations of the corresponding test of proportionality, but the one that is most frequently cited in UK courts comes from the case de Freitas v Permanent Secretary, Ministry of Agriculture, Fisheries Land and Housing [1999] 1 AC 69. Under the de Freitas test, as adapted, a limitation will be lawful only if each of the following questions is answered in the affirmative:

  1. Is the ground of “public interest” that is pursued sufficiently important to justify limiting a fundamental right?
  2. Is the measure adopted in pursuit of the ground of “public interest” rationally connected to it?
  3. Are the means used to impair the right or freedom no more than is necessary to accomplish the objective?
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