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Qualified rights allow the most

The rights and freedoms of the European Convention of Human Rights that are incorporated through HRA 1998 can be classified into three groups of rights: absolute rights, limited rights, and qualified rights. The categorisation of the rights is done on the basis of the extent of how far these rights can be derogated from or balanced as against other rights and public interest with the absolute rights least amenable to such derogation and the qualified rights most amenable to such derogation. This is also related to how far the states can restrict the rights of the individuals on the grounds of other rights and public interest. The differences between the categories can also be related to the strength of the individual right against the possible restrictions imposed by the state.

The nature of the absolute rights is such that they cannot be derogated from even during the time of war or national emergency, nor can these rights be balanced against other rights or public interest. Articles 3 is an example of absolute rights. The ECtHR has referred to the absolute nature of the rights in Article 3, holding that the state cannot impose restrictions on the right as it relates to the freedom against degrading treatment. In other words, the right seen to be so essential to human beings that derogation is not justified on any ground. Some rights can be restricted; for instance, the Supreme Court held that there is no absolute right to the privilege against self-incrimination. These cases refer to the extent to which the state can derogate from the right provided in these articles. As per the jurisprudence developed by the ECtHR, there is no room for derogation in absolute rights like right against inhumane and degrading treatment in Article 3. The second category is of limited rights, which are similar to the absolute rights in that they cannot be balanced against other rights or public interest, but the difference between these rights and absolute rights is that unlike the latter, limited rights can be derogated from in times of war or national emergency. The right to liberty in Article 5 is an example of limited rights. Like other rights that can be limited, Article 5 has specific limitation clause.

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The last category of the rights is that of qualified rights. These rights are amenable to both derogation in the times of war or emergency as well as restriction for the protection of the rights of others or for the wider public interest. The very structuring of the qualified rights allows the restrictions to be set out in the article itself so that along with the right, the same article also sets out the grounds on which public authorities can legitimately interfere with that right in order to protect the wider public interest. An example of a qualified right can be found in Articles 8 of the ECHR. Unlike Article 5 and other limited rights, Article 8 has a general limitation clause, which makes the scope of limitation broader than that in limited rights. Thus, Article 8 can be balanced against economic considerations for example (Article 8(2)) and can also be derogated from in times of emergency or war. On the other hand, while Article 5 can be derogated from in emergency, it cannot be limited by balancing it against the rights of other individuals or public interest.

Thus, the rights in the ECHR are not all similar in terms of how far they can be derogated from in emergency or how far they can be balanced as against the rights of other individuals or in the name of public interests. Absolute rights cannot be derogated from and nor can they be balanced as against other rights. Limited rights can be derogated from but have specific restrictions that can be used by the public authorities to limit the rights. Qualified rights allow the most room to the public authorities in context of restriction on the right of the individual.

The concepts of monism and dualism are related to the nature of the relationship between international and domestic law within a country. The monist concept sees the international law and national law as two components of a single body of law. In practical terms, a state is a monist state if international instruments that it has ratified are applicable directly by its courts without any parliamentary approval. In other words, once the international treaties and conventions are ratified they are treated as domestic law and can even take precedence over the parliamentary law. On the other hand, dualism sees international and municipal law to be two different bodies of laws. Consequently, dualist states do not apply international law directly upon ratification. Courts in dualist states do not apply the international law unless such law has been domesticated. Usually, the dualist states require parliament to domesticate the international law into national law for it to be applied by the courts.

Traditionally, dualism is known to be a common law idea and monism as a civil law idea and this is also reflected in the differences between the UK and other continental civil law states in the EU. The UK is a dualist state while many continental civil law countries are monist in their approach to international law. For instance, the Constitution of the French Republic itself provides that international law is binding on the state after it is ratified by the government in Article 55. No such provision can be found in the UK constitutional law. On the contrary, the constitutional law in the UK contains an important convention in the doctrine of parliamentary sovereignty. Therefore, any recognition of international law being directly applicable without the parliamentary assent would be deemed to be contrary to the principle of parliamentary sovereignty as held in Metric Martyrs case which is discussed below.

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Even though the application of ‘direct effect’ of EU law is incorporated in the UK through the European Communities Act 1972, it is the Parliament that has voluntarily given effect to the EU law in the way in Section 2(1) provides. Section 2(1) requires the courts in the UK to give direct effect to the EU law. This still means that the EU law is directly applied to the UK because the parliament has allowed this application. In other words, this can be seen as the international law (at least in the EU context) being applied to the UK directly because the Parliament has accepted its operation in this way under the European Communities Act 1972. The Parliament however cannot be said to have bound its successors to the similar direct effect of the EU law as decided in Metric Martyrs case, wherein the court held that the parliament is not stopped from changing the direct effect operation of the EU law in future because the principle of parliamentary sovereignty is applicable. The thesis that UK is a dualist state is strengthened by the fact that other than the EU law, other international law is not directly applied in the UK and the courts cannot apply the international law unless it has been domesticated by the Parliament. Therefore, it can be said that the UK is a dualist state.


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