To what extent may the exercise of these rights be restricted?

. To what extent may the exercise of these rights be restricted?

The second paragraph of these Articles indicates the circumstances under which the exercise of the freedoms encompassed by the first paragraphs may be restricted by the state.

By law. Restrictions must be ‘in accordance with law’ (Article 8) or ‘prescribed by law’ (Articles 9, 10 and 11). In the past these provisions have created considerable problems for the United Kingdom not only because of the wide discretion given to public officials but also because the common law principle that what is not forbidden is permitted, has been applied to officials. The Strasbourg Court has developed two requirements:

Basis in law. The exercise of authority should have an express legal basis and be based on an identifiable legal rule. This will normally require power to be exercised on the basis of an Act of Parliament or subordinate regulation or a set of clear and identifiable common law rules.

Forseeability. The legal basis should be sufficiently clear and precise so that a person can know, at least on legal advice, whether a proposed course of action is forbidden by law or likely to cause public authorities to take action.

The ‘by law’ requirement has, for example, meant that the traditional power of Magistrates to bind over for good behaviour has had to be stopped since what will or will not count as being of ‘good behaviour’ cannot be predicted: ): Hashman and Harrup v UK 1999 On the other hand binding over to “keep the peace” is now, as a matter of law (following a recent series of cases) sufficiently predictable in its use that it is not, in general terms, incompatible with the Convention: Steel and Others v UK 1998.