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( 155 .)


to ensure such education and teaching in conformity with their own religious and philo-
sophical convictions.

Article 3 of the First Protocol: Right to free elections

The High Contracting Parties undertake to hold free elections at reasonable intervals by
secret ballot, under conditions which will ensure the free expression of the opinion of the
people in the choice of the legislature.
744 British Government and the Constitution

Article 1 of the Thirteenth Protocol: Abolition of the death penalty

The death penalty shall be abolished. No one shall be condemned to such penalty or

Three sets of observations may be made about these Convention rights: ¬rst, we
note the di¬erences between absolute and quali¬ed rights; secondly, we con-
sider the extent to which the Convention rights impose positive obligations; and
thirdly we examine the scope of the protection a¬orded under the Human
Rights Act.

(i) Absolute and qualified rights
The Convention rights set out in Schedule 1 to the Human Rights Act replicate
the corresponding Articles of the European Convention in their full extent,
including the exceptions and quali¬cations that are expressed in a number of
those Articles. Some of the Convention rights may be described as absolute, in
the sense that they may not in any circumstances be overridden or abridged by
the authorities of the state. Among these rights are Article 2, the right to life;
Article 3, the right not to be subjected to torture or to inhuman or degrading
treatment or punishment; Article 4(1), the right not to be held in slavery or
servitude; Article 5(1), the right to liberty and security of person; and Article 7,
the right not to be convicted or punished under retroactive criminal law. That
said, however, account must always be taken of the terms in which the right is
formulated in the Article that confers it and, in particular, of any speci¬ed limits
of the right, in order to discover its dimensions or scope. For instance, Article
5(1) allows the detention of persons “ in accordance with procedures prescribed
by law “ on six speci¬ed grounds. Note also the terms of Articles 2(2) and 7(2).
Within their de¬ned limits, however, such rights may be absolutely protected
from restriction.
Article 6, the right to a fair trial, encompasses a number of ancillary rights
such as the right to a public hearing and the presumption of innocence in crim-
inal proceedings. While the fundamental right to a fair trial is absolute, the
several constituent rights in Article 6 are not, and may have to be balanced
against wider interests of the community. (See Brown v Stott [2003] 1 AC 681,
704, 708, 719, 728.)
Even if a Convention right is expressed in unquali¬ed terms there is a role for
the courts in determining its scope. In respect of Article 3, for instance, it will
be for the court to determine whether ill-treatment of an individual attribut-
able to a public authority is of such severity as to be ˜inhuman or degrading™ (see
eg, R (Q) v Secretary of State for the Home Department [2003] EWCA Civ 364,
[2004] QB 36, and see further below).
Where positive obligations arise by implication from Convention Articles
(on which see below), these are not absolute: they are to be ˜interpreted in
a way which does not impose an impossible or disproportionate burden on
745 Liberty and the constitution

the authorities™: R (Pretty) v Director of Public Prosecutions [2001] UKHL 61,
[2002] 1 AC 800.
Some Convention rights are not absolute but ˜quali¬ed™, in that they may be
restricted by the state on speci¬ed grounds. Particular notice should be taken of
the quali¬cations expressed in the second paragraphs of Articles 8 to 11. These
paragraphs allow the exercise of the respective rights and freedoms to be
restricted by authorities of the state if three conditions are met: namely, if the
restriction is prescribed by law; if it is ˜necessary in a democratic society™; and if
it serves a certain, prescribed aim or objective, as listed in the respective Article.
(On the meaning of the phrase ˜necessary in a democratic society™ and on its
connection to notions of proportionality, see chapter 10.) Each of the para-
graphs in question admits, as grounds for restriction of the respective rights, the
interest of public safety and the need to protect health or morals or the rights
and freedoms of other persons. National security and the prevention of disor-
der or crime appear among additional grounds of limitation in Articles 8, 10
and 11 (but not in Article 9), while other grounds are speci¬c to a single Article:
for instance, Article 11(2) allows the exercise of the right to freedom of assem-
bly and association by members of the armed forces, the police or public
servants to be restricted by law. The structure of Articles 8 to 11 re¬‚ects the aim
of the Convention to strike a just balance between the general interests of a
democratic society and the fundamental rights of the individual, but with a par-
ticular emphasis upon the latter. (See the Belgian Linguistic Case (No 2) (1968)
1 EHRR 252; Klass v Germany (1978) 2 EHRR 214, 237.) Permitted restrictions
of Convention rights are to be narrowly interpreted: Sunday Times v United
Kingdom (1979) 2 EHRR 245, para 65.
In Sporrong v Sweden (1982) 5 EHRR 35, para 69, the European Court said
that the search for a fair balance between the demands of the general interest of
the community and the individual™s fundamental rights ˜is inherent in the
whole of the Convention™. Accordingly the above requirements are applicable
not only in respect of Articles 8 to 11 but whenever a restriction of a Convention
right is sought to be justi¬ed. See further Samaroo v Secretary of State for the
Home Department [2001] EWCA Civ 1139, [2001] UKHRR 1150, [26]“[28],
and consider Leigh [2002] PL 265.

(ii) Positive and negative obligations
The Human Rights Act makes it unlawful for a public authority in the United
Kingdom to act in a way which is incompatible with a Convention right and
˜act™, for this purpose, includes a failure to act (HRA, s 6(1), (6)). This plainly
means that a public authority is under a (negative) obligation not itself to
infringe the right, but it may also be bound by a positive duty to take appropri-
ate action to ensure that the Convention right is protected from violation,
whether by the authority™s own agents or by others. Article 14, for instance, pro-
vides explicitly that the right not to su¬er discrimination (in the enjoyment of
Convention rights) is to be ˜secured™. More generally, the authorities may be
746 British Government and the Constitution

obliged to provide ˜a regulatory framework of adjudicatory and enforcement
machinery in order to protect the rights of the individual™ (Butler-Sloss P in
Venables v News Group Newspapers Ltd [2001] Fam 430, [25]). Domestic courts,
following decisions of the European Court of Human Rights, have identi¬ed a
positive duty arising from Article 2 (the right to life), expressed in Osman
v United Kingdom (1998) 29 EHRR 245, para 115, as a duty ˜not only to refrain
from the intentional and unlawful taking of life, but also to take appropriate
steps to safeguard the lives of those within [the state™s] jurisdiction™. This duty
may oblige the authorities to put in place measures to counter threatened crimi-
nal acts that put life at risk: see eg, Venables v News Group Newspapers Ltd
above; R (A) v Lord Saville of Newdigate [2001] EWCA Civ 2048, [2002] 1 WLR
1249. Article 2 may also give rise to a ˜procedural obligation™ to conduct an
e¬ective investigation in a case in which death has resulted from neglect, negli-
gence or the use of force in which agents of the state are alleged to have been
involved: see eg, Jordan v United Kingdom (2003) 37 EHRR 52; R (Amin)
v Secretary of State for the Home Department [2003] UKHL 51, [2004] 1 AC 653;
R (Middleton) v West Somerset Coroner [2004] UKHL 10, [2004] 2 AC 182.
The extent to which Article 3 (the prohibition on torture, degrading and
inhuman treatment) imposes positive obligations was explored by the House of
Lords in the following case.

R (Limbuela) v Secretary of State for the Home Department [2005]
UKHL 66, [2006] 1 AC 396
Section 95 of the Immigration and Asylum Act 1999 provides that the Secretary
of State may arrange for the provision of a range of support services for asylum-
seekers ˜who appear to the Secretary of State to be destitute or to be likely to
become destitute™ within a certain period of time. Section 55 of the Nationality,
Immigration and Asylum Act 2002 provides, by way of exception, that the
Secretary of State may refuse support services to asylum-seekers whose claims
for asylum were not made as soon as reasonably practicable after the person™s
arrival in the United Kingdom. (In practice this provision has restricted
bene¬ts and support services to those asylum-seekers who claimed asylum only
at the port of entry: a claim made at any point after the person had passed the
point of immigration control was likely to be regarded as having been made too
late, unless there were special circumstances: see the opinion of Lord Hope at
[39].) Section 55(5)(a) of the 2002 Act provides that ˜This section shall not
prevent the exercise of a power by the Secretary of State to the extent necessary
for the purpose of avoiding a breach of a person™s Convention rights™. This pro-
vision needs to be read together with section 6(1) of the HRA, which provides
that ˜It is unlawful for a public authority to act in a way which is incompatible
with a Convention right™.
Mr Limbuela, a national of Angola, maintained that he arrived in the
United Kingdom at an unknown airport accompanied by an agent and that on
747 Liberty and the constitution

the same day he claimed asylum at the Asylum Screening Unit at Croydon. He
was provided with emergency accommodation but it was subsequently
decided that he had not claimed asylum as soon as reasonably practicable and
he was evicted from his accommodation. He spent two nights sleeping rough,
during which time he had no money and no access to food or to washing facil-
ities. After being advised to contact a solicitor he obtained interim relief and
permission to seek judicial review. He argued that his treatment violated his
rights under Article 3 (in that he was subjected to inhuman or degrading treat-
ment). The leading speech in a unanimous House of Lords was delivered by
Lord Hope.

Lord Hope: . . . [A]rticle 3 may be described in general terms as imposing a primarily negative
obligation on states to refrain from inflicting serious harm on persons within their jurisdic-
tion. The prohibition is in one sense negative in its effect, as it requires the state “ or, in the
domestic context, the public authority “ to refrain from treatment of the kind it describes.
But it may also require the state or the public authority to do something to prevent its delib-
erate acts which would otherwise be lawful from amounting to ill-treatment of the kind
struck at by the article . . .
But the European Court has all along recognised that ill-treatment must attain a minimum
level of severity if it is to fall within the scope of the expression ˜inhuman or degrading treat-
ment or punishment™: Ireland v United Kingdom (1978) 2 EHRR 25, 80, para 167; A v United
Kingdom (1998) 27 EHRR 611, 629, para 20; V v United Kingdom (1999) 30 EHRR 121,
para 71. In Pretty v United Kingdom 35 EHRR 1, 33, para 52, the court said:
˜As regards the types of “treatment” which fall within the scope of article 3 of the
Convention, the court™s case law refers to “ill-treatment” that attains a minimum level
of severity and involves actual bodily injury or intense physical or mental suffering.
Where treatment humiliates or debases an individual showing a lack of respect for, or
diminishing, his or her human dignity or arouses feelings of fear, anguish or inferiority
capable of breaking an individual™s moral and physical resistance, it may be charac-
terised as degrading and also fall within the prohibition of article 3. The suffering which
flows from naturally occurring illness, physical or mental, may be covered by article 3,
where it is, or risks being, exacerbated by treatment, whether flowing from conditions
of detention, expulsion or other measures, for which the authorities can be held
It has also said that the assessment of this minimum is relative, as it depends on all the cir-
cumstances of the case such as the nature and context of the treatment or punishment that
is in issue. The fact is that it is impossible by a simple definition to embrace all human con-
ditions that will engage article 3 . . .
The first question that needs to be addressed is whether the case engages the express
prohibition in article 3. It seems to me that there can only be one answer to this question if
the case is one where the Secretary of State has withdrawn support from an asylum-seeker
under section 55(1) of the 2002 Act. The decision to withdraw support from someone who
would otherwise qualify for support under section 95 of the 1999 Act because he is or is
748 British Government and the Constitution

likely to become, within the meaning of that section, destitute is an intentionally inflicted
act for which the Secretary of State is directly responsible. He is directly responsible also for
all the consequences that flow from it, bearing in mind the nature of the regime which
removes from asylum-seekers the ability to fend for themselves by earning money while
they remain in that category. They cannot seek employment for at least 12 months, and resort
to self-employment too is prohibited. As the Court of Appeal said in R (Q) v Secretary of State
for the Home Department [2004] QB 36, 69, para 57, the imposition by the legislature of a
regime which prohibits asylum-seekers from working and further prohibits the grant to them,
when they are destitute, of support amounts to positive action directed against asylum-
seekers and not to mere inaction. This constitutes ˜treatment™ within the meaning of the
article . . .
It is possible to derive from the cases which are before us some idea of the various factors
that will come into play in this assessment: whether the asylum-seeker is male or female,
for example, or is elderly or in poor health, the extent to which he or she has explored all
avenues of assistance that might be expected to be available and the length of time that
has been spent and is likely to be spent without the required means of support. The expo-
sure to the elements that results from rough-sleeping, the risks to health and safety that it
gives rise to, the effects of lack of access to toilet and washing facilities and the humiliation
and sense of despair that attaches to those who suffer from deprivations of that kind are all
relevant . . .
It was submitted for the Secretary of State that rough sleeping of itself could not take
a case over the threshold. This submission was based on the decision in O™Rourke v United
Kingdom, (Application No 39022/97) (unreported) 26 June 2001. In that case the appli-
cant™s complaint that his eviction from local authority accommodation in consequence of
which he was forced to sleep rough on the streets was a breach of article 3 was held to
be inadmissible. The court said that it did not consider that the applicant™s suffering
following his eviction attained the requisite level to engage article 3, and that even if it
had done so the applicant, who was unwilling to accept temporary accommodation and
had refused two specific offers of permanent accommodation in the meantime, was largely
responsible for the deterioration in his health following his eviction. As Jacob LJ said in
the Court of Appeal [2004] QB 1440, 1491, para 145, however, the situation in that case is
miles way from that which confronts section 55 asylum-seekers who are not only forced
to sleep rough but are not allowed to work to earn money and have no access to financial
support by the state. The rough sleeping which they are forced to endure cannot be
detached from the degradation and humiliation that results from the circumstances that
give rise to it.
As for the final question, the wording of section 55(5)(a) shows that its purpose is to
prevent a breach from taking place, not to wait until there is a breach and then address its
consequences. A difference of view has been expressed as to whether the responsibility of
the state is simply to wait and see what will happen until the threshold is crossed or whether
it must take preventative action before that stage is reached. In R (Q) v Secretary of State
for the Home Department [2004] QB 36 the court said that the fact that there was a real risk
that the asylum-seeker would be reduced to the necessary state of degradation did not of
749 Liberty and the constitution

itself engage article 3, as section 55(1) required the Secretary of State to decline to provide
support unless and until it was clear that charitable support had not been provided and
the individual was incapable of fending for himself: p 70, para 63. But it would be necessary
for the Secretary of State to provide benefit where the asylum-seeker was so patently
vulnerable that to refuse support carried a high risk of an almost immediate breach of article
3: p 71, para 68. In R (Zardasht) v Secretary of State for the Home Department [2004] EWHC
91 (Admin) Newman J asked himself whether the evidence showed that the threshold of
severity had been reached. In R (T) v Secretary of State for the Home Department 7 CCLR 53
the test which was applied both by Maurice Kay J in the Administrative Court and by the Court
of Appeal was whether T™s condition had reached or was verging on the degree of severity
described in Pretty v United Kingdom 35 EHRR 1.
The best guide to the test that is to be applied is, as I have said, to be found in the use
of the word ˜avoiding™ in section 55(5)(a). It may be, of course, that the degree of severity
which amounts to a breach of article 3 has already been reached by the time the condition
of the asylum-seeker has been drawn to his attention. But it is not necessary for the condi-
tion to have reached that stage before the power in section 55(5)(a) is capable of being
exercised. It is not just a question of ˜wait and see™. The power has been given to enable
the Secretary of State to avoid the breach. A state of destitution that qualifies the asylum-
seeker for support under section 95 of the 1999 Act will not be enough. But as soon as
the asylum-seeker makes it clear that there is an imminent prospect that a breach of the
article will occur because the conditions which he or she is having to endure are on the
verge of reaching the necessary degree of severity the Secretary of State has the power
under section 55(5)(a), and the duty under section 6(1) of the Human Rights Act 1998, to
act to avoid it.


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( 155 .)