In this article we examine the implications of recent coronavirus legislation on protected rights under the first article of the first protocol to the ECHR (‘A1P1’) which provision applies in the United Kingdom by virtue of the Human Rights Act 1998 (the ‘HRA 1998’).
We focus on the Coronavirus Act 2020 (‘the Act’) and the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020/350 (‘the Regulations’) (collectively the ‘Coronavirus Legislation’) noting that equivalent issues arise under the near-equivalent provisions introduced in Northern Ireland, Wales and Scotland.
As described below, A1P1 covers a broad range of economic interests, for example contractual rights, licenses to carry out an activity, or rights connected to the carrying out of a business or profession. In broad terms it places obligations on public bodies not to interfere with the peaceful enjoyment with protected rights unless such interference is justified by a legitimate aim and proportionate to that aim.
As such, many Convention rights A1P1 rights are qualified rights, not absolute rights such that interference with the right by way of measures taken in the general interest will generally be unimpeachable so long as they taken to meet a legitimate aim and are proportionate. The key principle of proportionality is one we deal with in some detail, noting by way of introduction that (i) what is proportionate is fact-specific and so will likely vary over time and (ii) the Government will be given a wide (but not absolute) margin of discretion given the recognised severe widespread and as yet not fully understood health risks caused by the global coronavirus pandemic.
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