Article 3 Protocol 1

1 June 2010 by Adam Wagner

Protocol 1 Article 2 | Right to free and fair elections

Read posts on this Article

Article 1 Protocol 3 provides as follows:

The High Contracting Parties shall 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.

This Article imposes obligations on States rather than creating rights for individuals. This provision includes the right to vote and the right of candidates to stand for election.

States are under an obligation not to impose any form of pressure as to the choice of candidates at elections: Moureaux v Ors (1983) DR 97.

Protocol 1 Article 3 does not require that every vote is given equal weight; different electoral systems all involve wasted votes and there is no obligation to introduce proportional representation.

Access to the media must not be discriminatory. However, a wide margin of appreciation applies under this Article and the Strasbourg authorities have been slow to strike down national rules relating to election coverage (Tete v France (1987) 54 DR 52).

So there is nothing controversial about the express terms of A1 31, however this Article has become something of a battleground for almost everything the Convention stands for, in the eyes of its opponents as well as its supporters. This is because the Strsabourg Court found, in Hirst v United Kingdom (2006) 42 EHRR 41, that the provision implies that all individuals have the right to vote, and that therefore the UK blanket ban a blanket ban on all prisoners serving a sentence of imprisonment is unlawful. The standoff between the UK and Strasbourg on this matter is as yet unresolved.  The reason the argument has become so heated is that it turns on a fundamental question at the base of human rights instruments such as the Convention: Is it the right of the democratically elected Parliament to decide who their electorate should be?  See the numerous case reports, news pieces and discussions on the prisoner voting issue here, here and here.

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• Introduction to the Human Rights Act 1998

The Weekly Round-up: Scottish independence referendum, retained EU law and social media

30 November 2022 by Ruby Turok-Squire

In the News…

The Supreme Court has ruled unanimously that the Scottish parliament does not have the power to pass legislation that would allow for a second referendum on Scottish independence. Such legislation, the Supreme Court found, would touch on ‘reserved matters’, that is, matters affecting the United Kingdom as a whole. The Scottish government unsuccessfully argued that a referendum would be advisory, and as it would not have immediate impact on the existence of the UK, would not touch on reserved matters. Sturgeon, while respecting the ruling, commented that it confirmed that the UK can no longer be pictured as a voluntary partnership and noted that the next general election could serve as a ‘de facto referendum’.

Nurses are preparing to strike for the first time on the 15th and 20th of December. The issues in question include low pay and unsafe staffing levels. The Royal College of Nursing (RCN) has reported that experienced nurses are 20% worse off in real terms than in 2010, due to many pay increases below the rate of inflation, and that 25,000 nursing staff have left the Nursing and Midwifery Council register since last year. If ministers continue to refuse to engage in formal negotiations with the RCN, the strikes will go ahead across England, Wales and Northern Ireland, and are expected to have a severe impact on care.

Has the time come for gay marriage in the UK?

21 July 2010 by Adam Wagner

The deputy leader of the Liberal Democrats has said that gay couples are likely to gain full rights to marriage under the current Parliament. This would represent a revolution for gay rights, but there is still a long way to go before same-sex couples achieve full rights to marriage as they are arguably entitled to under human rights law.

Simon Hughes MP has told Yoost.com, a question and answer website, that Liberal Democrat MPs would be consulted on the rights of gay couples. He said “I don’t know the answer because we haven’t had the discussion“, but that

I see absolutely no reason why we shouldn’t all be able to support what Nick Clegg said, which is that it would be appropriate in Britain in 2010-11 for there to be the ability to have civil marriage for straight people and gay people equally.

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Do full body scanners breach the right to privacy? [updated x 2]

17 February 2010 by Adam Wagner

The Equality and Human Rights Commission have written to the Government urging caution before the introduction of full body scanners at UK airports; not that it has slowed the Government down – apparently, the scanners will be in UK airports as early as next week. Passengers at Manchester Airport have been experiencing full body scans since October, but clearly the recent botched ‘Detroit Bomber’ terrorist attack has speeded up their uptake.

John Wadham, group director legal at the EHRC says:

The right to life is the ultimate human right and we support the government reviewing security in the light of recent alleged terrorist activity. However, the government needs to ensure that measures to protect this right also take into account the need to be proportionate in its counter-terrorism proposals and ensure that they are justified by evidence and effectiveness.

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The conservative case for gay marriage

16 July 2012 by Adam Wagner

The current debate on legalising gay marriage was sparked by one of the more memorable speeches of this Government, when Prime Minister David Cameron said “I don’t support gay marriage in spite of being a conservative. I support gay marriage because I am a conservative.” 

What has been missing from the debate since that speech has been a convincing, measured discussion from the political right on what he meant. Until now, that is. Today the Policy Exchange, a leading conservative think tank thank, has published What’s In A Name? Is there a case for equal marriage? Don’t be fooled by the question mark in the title. This report represents the best and most carefully considered case for equal marriage from a conservative (with a small ‘c’) perspective so far.

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Family life and extraterritorial jurisdiction: IA & Ors v Secretary of State for the Home Department [2025] EWCA Civ 1516 

10 December 2025 by Guest Contributor

By Samuel Talalay

Introduction 

UK and Strasbourg to conflict over return of Iraqi refugees

24 November 2010 by Rosalind English

Iraqis whose applications for asylum are unsuccessful will be continued to be deported, according to a government minister. The announcement comes despite the European Court of Human Rights effectively calling for a freeze on the practice.

The BBC reported on Monday that Foreign Office minister Alistair Burt told the them that Iraq was now considered safe enough for people to return to. An earlier post explored the legal implications of the return by the UK of Baghdad last year.  The Upper Tribunal (Immigration and Asylum Chamber) held that the degree of indiscriminate violence in Iraq was not so high that the appellants could resist return.
Other parties, such as the UN High Commissioner for Refugees, maintain that much of Iraq remains unsafe, although the majority are sent to the North where explosions and shootings are not the danger they are in the South. But as long as the UK government maintain the view that Iraq is no longer a war-torn country, there are no grounds for the Iraqi’s continued presence in here.
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“Locked-in” sufferer’s challenge to ban on voluntary euthanasia fails in the high court

16 August 2012 by Rosalind English

The Queen(on the application of Tony Nicklinson) v Ministry of Justice [2012] EWHC 2381 (Admin) – read judgment

Lord Justice Toulson, sitting with Mrs Justice Royce and Mrs Justice Macur, has  handed down judgment in the case of Tony Nicklinson and that of another “locked-in” syndrome sufferer, “Martin”. On all the issues, they have deferred to parliament to take the necessary steps to address the problems created by the current law of murder and assisted suicide.

Philip Havers QC  of 1 Crown Office represented Martin in this case. 

Tony Nicklinson sought a declaration of immunity from prosecution for a doctor who would give him a fatal dose of painkillers to end his life in Britain. He also sought a declaration that the current law is incompatible with his right to respect for private life under article 8, contrary to s1 and 6 of the Human Rights Act 1998, in so far as it criminalises voluntary active euthanasia and/or assisted suicide.

Martin’s claim was slightly different as his wife does not want to do anything which will hasten his death. He therefore asked for permission for volunteers to be able to help him get to the Dignitas clinic in Switzerland (under recent guidelines from the Director of Public Prosecutions only family members or close friends who are motivated by compassion are unlikely to be prosecuted for assisting a suicide). In the alternative he sought a declaration that section 2 of the Suicide Act is incompatible with the right to autonomy and private life under Article 8 of the European Convention. 
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Minimum income rules for immigrants do not breach human rights – Appeal Court

18 July 2014 by Rosalind English

MM(Lebanon) and Others, R (on the application of ) v Secretary of State for the Home Department & Anor [2014] EWCA Civ 985 (11 July 2014) – read judgment

Neil Sheldon of 1 Crown Office Row acted for the appellant Secretary of State in this case. He has not had anything to do with the writing of this post.

Provisions in the Immigration Rules which impose income requirements on individuals living in the United Kingdom, who wish to bring their non-European Economic Area citizen spouses to live with them, are not a disproportionate interference with their right to family life under Article 8 of the European Convention on Human Rights. The Court of Appeal has also underlined the important (but often misunderstood) point that there is no legal requirement that the Immigration Rules should provide that the best interests of the child should be determinative. Section 55 of the Borders, Citizenship and Immigration Act 2009 is not a “trump card” to be played whenever the interests of a child arise. 
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Standing and discretion – who acts for ospreys?

19 October 2012 by David Hart KC

Walton v. The Scottish Ministers, Supreme Court, 17 October 2012 read judgment

The outcome of this challenge to a road scheme near Aberdeen turned on abstruse points about environmental assessment – but the speeches from the Justices go right to the heart of two big questions in public law.

1. When can someone challenge an unlawful act – when do they have “standing” to do so?

2. If an unlawfulness is established, when can the courts exercise their discretion not to quash the unlawful act, particularly where the unlawfulness arises under EU law?

In the course of the standing issue Lord Hope talks about ospreys – hence my title, but a bit more context first. And we shall also see the views of the Court that standing and discretion are linked questions.

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The cat paradox

5 October 2011 by Rosalind English

Schrödinger would be rolling in his grave. The nation is abuzz with talk of a cat. A cat that is simultaneously there or not there. The speakers at yesterday’s seminar at Inner Temple hall on Strasbourg and the UK: Dialogue or Conflict, felt it incumbent to start each of their talks with a Cat Joke. But behind all this mirth about a supposedly “ridiculous” Article 8 decision, lie three serious points, some of which were touched on during the seminar though perhaps not with the detail they deserved.

First, it is not the cat that has toxified the debate about Article 8 and the vexed question of deportation. The right to respect under Article 8 is not only to family ties – however absurdly extended – but to private life itself.  Article 8 also protects the right to establish and develop relationships with other human beings and the outside world and can sometimes embrace aspects of an individual’s social identity, (Niemietz v Germany (1992)). Therefore if a court wants to prevent the what it perceives as the unjust deportation of the individual before it, it has a much wider constellation of interests to turn to than the family circle, whether or not that involves companion animals. Some might even take the view that attachment to such an animal may evince a more genuine emotional tie than many that have been advanced to claim the protection of Article 8.
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Lost renewables subsidies successfully claimed as human rights damages

13 February 2013 by David Hart KC

Ofgem (Gas & Electricity Markets Authority) v. Infinis) [2013] EWCA  Civ 70, Court of Appeal 13 Feburary 2013 read judgment, on appeal from decision of Lindblom J Read judgment and my previous post

This decision upholding an award of damages for a claim under Article 1 Protocol 1 (right to possessions) may seem rather straightforward to a non-lawyer. Infinis lost out on some subsidies because the regulator misunderstood a complex legal document.  It could not claim those subsidies any more, so it claimed and got damages from the regulator. But the relatively novel thing is that English law does not generally allow claims for damage caused by unlawful action by the state. And yet the Court of Appeal found it easy to dismiss the regulator’s appeal on this point.

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The right of appeal against refusal of a residence card: the latest developments

24 October 2018 by Jonathan Metzer

As discussed previously on the Blog, the rights of the family members of EEA nationals to reside in the UK is currently in a state of flux. One important issue concerns the appeal rights of an “extended family member” of an EEA national.

At the moment, if a “family member” of an EEA national resident in the UK, that is, a spouse, direct descendant (including a stepchild) who is dependent or under 21, or a dependent in the direct ascending line, applies for a residence card under the Immigration (European Economic Area) Regulations 2016 and is refused by the Home Office, they have a right of appeal to the First-tier Tribunal in the normal way.

However, if an “extended family member”, that is, a non-married partner or other dependent relative (e.g. grown-up child) of the EEA national applies for a residence card, but is refused, regulation 2 of the Immigration (European Economic Area) Regulations 2016 operates to preclude a right of appeal to the First-tier Tribunal. Therefore, only judicial review is available to challenge such a decision.

In my last article, we saw that one such “extended family member”, Ms Rozanne Banger (I am reliably informed that her surname is pronounced “Banjer” with a soft “g”), fought a case at the Upper Tribunal in part concerning the issue of whether the denial of a right of appeal to a person in her position was compatible with EU law, specifically Article 3(2) of Directive 2004/38 (known as the “Citizens Directive”). The Upper Tribunal decided that it needed to ask the Court of Justice of the European Union to clarify the matter.

But on 12th July 2018, the Court of Justice gave its decision.

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Immigration rules, prisoner voting and corporate accountability – The Human Rights Roundup

23 July 2012 by Wessen Jazrawi

Welcome back to the UK Human Rights Roundup, your weekly summary of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.

It has been an interesting week for immigration law, with so-called ‘back door’ immigration rule changes struck down by the Supreme Court. The UK has been hauled over the coals yet again about prisoner voting, and those of us interested in corporate accountability saw the High Court rule that it was arguable that the London parent company headquarters of a South African company was its place of central administration for domicile purposes.

by Wessen Jazrawi

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The limited human right to do business

1 September 2010 by Isabel McArdle

Prashant Modi v United Kingdom Border Agency [2010] EWHC 1996 – Read judgment

Mr Justice Burnett in the High Court has found that there was no breach of a man’s right to respect for private and family life (Article 8 of the European Convention on Human Rights) when he was refused entry to the UK for business purposes after conviction for a sexual offence. This interesting decision highlights the very limited nature of protection that Article 8 may give  in relation to business activities.

Mr Modi was an Indian businessman who was given multi-visit entry clearance for the UK in 2005. He regularly made business trips to the UK following this. In 2006 he committed a serious sexual offence in the UK and pleaded guilty to the charge. The Judge of the criminal court considered that the Appellant did not pose a serious risk to the public after the commission of the offence and made no recommendation for deportation.

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