Positive Obligation

Most rights read, on their face, as protections against state interference — but the courts have interpreted several of them as also requiring positive steps by public authorities. A government consultation response on Human Rights Act reform summarised the development directly: 'the ECHR Convention rights have been interpreted and incrementally expanded by the courts to require the state to discharge various positive obligations', which it described as 'duties for public authorities to take proactive action to ensure the protection of someone' has their rights upheld, rather than simply not being violated by the state itself.

A well-known example given in the consultation document concerns the right to life under Article 2: 'an example of this is the preventive duties that have arisen around Article 2, and managing Threat to Life operations', where public authorities such as the police can be required to take active protective measures once they know, or ought to know, of a real and immediate risk to a person's life — the principle traced to the European Court of Human Rights' decision in Osman v United Kingdom. Because positive obligations are developed incrementally through case law rather than fixed by the text of the Convention itself, their scope has been a recurring subject of political and judicial debate, including proposals to constrain how far courts can expand them.