22 November 2013

Four Fundamental Freedoms and the Human Rights Act 1998

Following my earlier introduction to Freedom of Expression law, this post considers the area in a little more technical detail, and with a broader perspective: the post examines differences between the other similar 'freedoms'--to privacy and family; of thought, conscience, and religion; and of assembly and association.

1. Engaging the Human Rights Act 1998 (HRA)

UK Judges must consider the European Convention on Human Rights' (ECHR) jurisprudence whenever its rights arise in domestic cases (HRA s 2). If legislation concerns those rights, the courts are obliged to interpret the statutes' provisions to strive for compatibility with the ECHR (HRA s 3).

If compatible interpretation is impossible, the courts may declare legislation incompatible (HRA s 4). This results in paperwork for Parliament, but does not enforce or (actively) make any legislative changes. Therefore if individuals are faced with apparently incompatible domestic legislation, it may be better to argue for a particular interpretation--to secure some favourable result--than to argue for a declaration of incompatibility.
  • If legislation is interpreted as compatible with ECHR rights, a favourable result may ensue.
  • But if the legislation grossly opposes ECHR rights, a judicial incompatibility declaration will pass the baton to Parliament to consider changes but changes made--if made timely or at all--may not produce the result that parties in a case desire.

2. ECHR: Four Freedoms

The next four subheadings quote the four freedoms' text. Each is written in the same format: the right is given; the right is qualified; and the process to interfere with the right in accordance with the qualifications (ie legitimately) is outlined.

2.1 Article 8: Right to Respect for Private and Family Life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

2.2 Article 9: Freedom of Thought, Conscience and Religion

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

2.3 Article 10: Freedom of Expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

2.4 Article 11: Freedom of Assembly and Association

1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

3. A Comparison

The right in Article 8 seems to be limited to a respect for the relevant freedom. This seems to exclude a full right to privacy or correspondence. Instead, individuals are apparently only guaranteed protection against arbitrary or capricious interferences with the private letters they send and receive. This differs from the other three Articles, which seem to guarantee the actual freedoms.

The freedom of thought in Article 9 is not as useless as it sounds. Who, you may ask, can prevent individuals from thinking whatever they want? Thoughts, after all, reside inside heads. This right is best coupled with the manifestation of religious beliefs--ie practicing religious thoughts through (public) prayer--and free expression--ie speaking thoughts or writing them.

Moreover, Article 10 gives the right to receive ideas. If the state restricts this, individuals are limited in the raw materials they may use to formulate their personal thoughts. Therefore Articles 9 and 10 reciprocate support in some cases: part of Article 10 is nonsensical without part of Article 9.

Manifesting religion under Article 9 appears to be exactly the same as expressing religious ideas under Article 10. The difference between the Articles--and the possible benefits for religion--lie in the qualifications in each Articles' second paragraph.

Article 10.2 gives more reasons than Article 9.2 on which States may rely to restrict the rights in the first paragraphs. This suggests the right to manifest religious beliefs is less likely to be restricted than the right to express non-religious ideas. In practice, neither Article works like that; but this reason for the disparity may explain why the ECHR drafters separated the freedoms rather than grouping all four Articles under one super, two-part Article.

The reason why neither Article works as the ECHR suggests, is due to an inherent feature in each four freedoms' second paragraph: interferences must be 'necessary in a democratic society'. This causes a problem. Individuals often rely on free expression to participate in contentious political discussions. This participation is fundamental to democracy (eg voting and party elections).

The courts acknowledge that religion is fundamental to individuals' identity. But they often refer to the separation of church and state to argue that religious freedom has no place in a democracy's mechanisms. So religious freedom is not protected as much as free expression, notwithstanding there are more justifications to restrict expression in Article 10.2 than religion in Article 9.2. (I will discuss this problem in more detail in a future post, probably with regard to Leyla Şahin v Turkey.)

Paragraph 2 in Article 11 differs from the others because it expressly provides that armed forces, the police, or State officials may lawfully restrict free assembly and association. This, of course, is still qualified because to impose such restrictions lawfully, they must be written in laws that are proportionate to legitimate aims and democratically necessary.

Article 11's explicit justification for physical interference with assembly seems to exempt State agents from responsibility for actions taken when crowds or protests may escalate to violence. This inherent feature of crowds is irrelevant to the other three freedoms unless they engage Article 11, too--in which case the other freedoms will be read in Article 11's light, anyway.

4. Conclusion

ECtHR jurisprudence and other ECHR literature (including domestic case law) assert these four freedoms are fundamental. The four freedoms precede individualism, autonomy, identity, personal development, and participation in democratic procedures. The four freedoms are therefore fundamental to individual security and happiness, but also to successful democracy.

The above analysis shows, however, the ECHR drafters considered some rights more important than others--hence the codified disparities. Strangely, perhaps, the four freedoms' application in case law (domestic and international) shows a disregard for equality between rights, and the importance attributed by the drafters to each right. That disregard is illustrated in case law where, eg, judges justify some rights violations with reasons that are held to be inadequate justifications for one or other of the remaining three freedoms.

All this is documented in myriad journal articles, monographs, text books, and cases, etc. I intend to write more on the issue, in relation to specific problems and cases, in future posts. If, before then, you're thirsty for more ECHR texts, see 'further reading', below.

This post attempted to explain why and how ECHR law matters in the UK. After that, the intent was to outline what are colloquially known as the four freedoms (I say colloquially because all ECHR provisions concern freedoms, but these four are often grouped together). It is hoped this explanation and outline provides an overview of some topics commonly discussed in constitutional and human rights law.

5. Further Reading

In Leyla Şahin v Turkey (10 November 2005) the ECtHR (sitting as a Grand Chamber) held that a Turkish restriction on religious dress in a secular university was lawful. The case is contentious and has received more criticism than most other big cases I can think of.

If a case reaches the Grand Chamber, readers may be certain that its content is important and juicy. Jersild v Denmark (23 September 1994) is such a case. Read it, and compare the margin of appreciation given (this will make sense if you read a few ECtHR cases) with that given in Şahin to begin to understand (or question) the disparities between different rights' protection.

For a broader overview, try the relevant chapters in DJ Harris, M O'Boyle, EP Bates, and CM Buckley, Harris, O'Boyle & Warbrick: Law of the European Convention on Human Rights (2nd edn, OUP 2009).

Created: 22 November 2013. Version 1.0.

You May Also Like…

No comments:

Post a Comment

Thank you for your comments.

Comments are moderated. Inappropriate comments and spam will be deleted. rel="nofollow" is in effect for backlinks.