Reconciling Human Rights and the Public Interest: Conceptual Problems and Doctrinal Uncertainty in the Jurisprudence of the European Court of Human Rights
| Author | Aileen McHarg |
| Published date | 01 September 1999 |
| Date | 01 September 1999 |
| DOI | http://doi.org/10.1111/1468-2230.00231 |
Reconciling Human Rights and the Public Interest:
Conceptual Problems and Doctrinal Uncertainty in the
Jurisprudence of the European Court of Human Rights
Aileen McHarg*
The incorporation of the European Convention on Human Rights (ECHR) by the
Human Rights Act 1998 raises many interesting questions concerning how deeply
it will penetrate the United Kingdom’s domestic legal orders.1However, perhaps
the most central is how British judges will respond to the interpretive challenges
posed by broadly-drafted Convention rights and, in particular, the need to
determine limits to those rights.
Like most rights documents, the rights conferred by the ECHR are not absolute.
All but four2may be restricted in specified circumstances.3First, certain rights are
subject to what may be termed ‘express definitional restrictions’, limiting either
their content,4the circumstances in which they apply,5or the persons who are
entitled to them.6Second, according to Article 15, all except the absolute rights
may be suspended ‘in time of war or other public emergency threatening the life of
the nation’ provided this is ‘strictly required by the exigencies of the situation’.
Most controversial, however, are those Articles which contain general exceptions
allowing states to interfere with rights in pursuit of other legitimate purposes,
primarily of a collective nature.7This category differs from the other limitations in
requiring case-by-case judgments as to whether priority should be given to
individual rights or to public interest goals.
ßThe Modern Law Review Limited 1999 (MLR 62:5, September). Published by Blackwell Publishers,
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*Department of Law, University of Bristol.
This article would not have been possible without the assistance of Steven Greer, whose original idea it was
and who also contributed to an earlier draft. I am grateful for his very generous agreement that the final
version should go forward in my name alone. Thanks are also due to Donald Nicolson, Tonia Novitz, Neil
Walker and two anonymous referees for their comments on previous drafts and to Julian Rivers for helpful
discussions and suggestions. Responsibility for any errors and shortcomings remains with me.
1 See eg J. Beatson et al (eds), Constitutional Reform in the United Kingdom: Practice and Principles
(Oxford: Hart Publishing, 1998) Part II; B.S. Markesinis (ed), The Impact of the Human Rights Bill on
English Law (Oxford: Clarendon Press, 1998); S.C. Greer, ‘A Guide to the Human Rights Act 1998’
(1999) 24 Eur LR 3.
2 The rights not to be subjected to torture or to inhuman or degrading treatment or punishment (Art 3);
not to be held in slavery or servitude (Art 4(1)); not to be convicted for conduct which was not an
offence under national or international law at the time it occurred (Art 7(1)); and not to have a heavier
penalty imposed for an offence than that which was applicable when the offence was committed (Art
7(1)).
3 Art 17 also prohibits any of the Convention rights being used in a way that undermines the exercise of
those rights by others. However, van Dijk and van Hoof argue that, for every notion of rights,
prohibition of their abuse is so self-evident it cannot be considered to affect their absolute character:
Theory and Practice of the European Convention on Human Rights (The Hague: Kluwer Law
International, 3rd ed, 1998) 761.
4 eg Art 4(3) lists various types of obligatory work which do not constitute ‘forced or compulsory
labour’.
5 eg the right to liberty under Art 5 is not infringed by, inter alia, ‘the lawful detention of a person after
conviction by a competent court’.
6 eg Art 16 authorises states to impose restrictions on the political activities of aliens.
7 See below at 684.
The interpretation given to these exceptions will clearly be a crucial determinant
of the practical significance of the Human Rights Act. However, the relationship
between rights and public interest goals also raises issues of profound theoretical
importance. One concerns what we actually mean by the term ‘rights’ in this
context. Although the relationship between the two concepts may be multi-
dimensional,8it is central to our understanding of rights – especially judicially-
protected human rights – that in situations of conflict they protect individuals’
interests or choices9from being overridden by considerations of collective utility.
There is thus something of a paradox in a legal scheme which is supposed to
protect the individual against the collective, itself sanctioning limitations to rights
on collective interest grounds. A second, less abstract, issue relates to the
legitimacy of allowing unelected judges to decide whether particular policies are
justified in the public interest and whether it is necessary for these to defer to
individual rights or vice versa.10 As the very stuff of politics, such decisions are
bound to be hotly contested. Accordingly, judges need to find a method for
resolving conflicts between rights and the public interest which is conceptually
defensible and hence allows them to preserve their claim to neutrality.
The ECHR itself provides a decision-making framework centred around the
notions of the ‘rule of law’ and ‘democratic necessity’ and British courts must have
regard to judgments of the European Court and (recently abolished) Commission
of Human Rights concerning its application in practice.11 However, considerable
confusion has been noted in the Strasbourg jurisprudence on this issue.12
Reasonably clear criteria have been developed for determining when the
requirements of legality are satisfied. But the fluidity and imprecision of the
‘democratic necessity’ test is such that the Court and Commission appear to have
8 Alexy posits four conceivable conceptual conjunctions – where: (1) individual rights are means to
collective goods; (2) collective goods are means to individual rights; (3) the collective good consists
of the existence and satisfaction of individual rights; (4) individual rights and collective goods exist
independently of any means-end relationship or relationship of identity: ‘Individual Rights and
Collective Goods’ reprinted in C. Nino (ed), Rights (Aldershot: Dartmouth, 1992) 169–174. See also
eg J. Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986); ‘Rights and Individual Well-
Being’ in Ethics in the Public Domain (Oxford: Clarendon Press, 1994); D.N. MacCormick, Legal
Right and Social Democracy (Oxford: Oxford University Press, 1982); J. Waldron, ‘Can Communal
Goods Be Human Rights?’ in Liberal Rights: Collected Papers 1981–91 (Cambridge: Cambridge
University Press, 1993).
9 It is not my intention to enter into debates over the relative merits of Interest/Benefit theories of
rights and Will/Choice theories. However, for a stimulating discussion of these theories which
argues that they are best understood as offering rival interpretations of the role of law in reconciling
the subjectivity of interests and projects with the demands of collective government, and which
reaches similar conclusions as to the fundamental difficulties encountered, see N.E. Simmonds,
‘Rights at the Cutting Edge’ in M.E. Kramer et al,A Debate Over Rights (Oxford: Clarendon Press,
1998).
10 This is, of course, a central objection of those who oppose constitutional protection of human rights:
see eg J.A.G. Griffith, ‘The Political Constitution’ (1979) 42 MLR 1, 12–14; T. Ison, ‘The
Sovereignty of the Judiciary’ (1985–86) 10 Adel Law Rev 1, 15 and 18; K.D. Ewing and C.A. Gearty,
Freedom
Under Thatcher: Civil Liberties in Modern Britain (Oxford: Clarendon Press, 1990)
267–269;
J. Waldron, ‘A Right-Based Critique of Constitutional Rights’ (1993) 13 OJLS 1, 33; J.
Allan, ‘A Bill of Rights and Judicial Power – A Liberal’s Quandary’ (1996) 16 OJLS 337, 347–351.
That it also troubles supporters of Bills of Rights, however, is clear from Dworkin’s attempt to
distinguish principle from policy in specifying the sort of arguments that judges may legitimately
employ: see Taking Rights Seriously (London: Duckworth, 1977) ch 4.
11 s 2(1) Human Rights Act 1998.
12 C.A. Gearty, ‘The European Convention on Human Rights and the Protection of Civil Liberties: An
Overview’ (1993) 52 CLJ 89, 97; P. Mahoney, ‘Judicial Activism and Judicial Self-Restraint in the
European Court of Human Rights: Two Sides of the Same Coin’ (1990) 11 Human Rights Law
Journal 57, 78–83; see also S. Greer, The Exceptions to Articles 8–11 of the European Convention on
Human Rights (Strasbourg: Council of Europe Publishing, Human Rights Files No 15, 1997).
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