Fresh from a 17-0 defeat in the European Court of Human Rights (in the case of Marper v the UK and the DNA database), a refreshed Home Office human rights team (under its new coach, Home Secretary, Alan Johnson), has suffered a 7-0 drubbing over its anti-terrorism law (in the case of Gillan and Quinton v the UK on stop and search). If we were really talking about football, what would you think of the Home Office human rights team and its new manager?
In practice the two cases reveal the serious structural malaise in the UK’s human rights regime that undermines Article 8 protection and by implication the Data Protection Act. The malaise has two characteristics: (a) legislation that permits the authorities to invade privacy does not get scrutiny by Parliament and (b) there is no easy method of challenging the law (especially in the field of national security).
First to scrutiny. When Government implements legislation it signs a statement on the face of the Bill saying everything is compliant with the Human Rights Act. However, it provides little evidence to Parliament to justify this. So much so, that the Joint Committee of Human Rights has called for a Human Rights Memorandum Assessment to accompany each Bill so that Parliament can do its job. This Assessment "at the very minimum" should “cite the evidence” and include details that:
• "identify the Convention rights and any other human rights engaged by the bill, and the specific provisions of the bill which engage those rights and explain the reasons why it is thought that there is no incompatibility with the right engaged”;
• “where the rights engaged are qualified rights, identify clearly the pressing social need which is relied on to justify any interference with those rights; assess the likely impact of the measures on the rights engaged; and explain the reasons why it is considered that any interference with those rights is justified”.
Now pause for a moment and ask a question: ‘How can Parliament scrutinise legislation that impacts on privacy or other aspects of human rights without the above Assessment?’. Answer: Parliament can’t and it doesn’t.
That is why the Parliamentary Joint Committee of Human Rights sometimes goes “spare” (in a dignified way). In one report in 2005, it said: “This is the fifth Government Bill within a very short period of time containing information sharing provisions the Convention compatibility of which has been asserted but not explained. In respect of each [Bill] we have commented that this is not satisfactory, but there has been no change in the Government's practice. This presents a very real obstacle to our scrutiny work”
This is still the problem. the Committee's report on Data Protection and Human Rights (JCHR: 14th Report; 2009) published following an inquiry into the HMRC's lost CD disks containing 25 million bank account details stressed that it "fundamentally disagreed" with an approach to setting data sharing policy that depended on "very broad enabling provisions" that grant Ministers far reaching powers.
So how to fix the problem? I think that in the UK, for example, the right to privacy of personal data could be implemented as an amendment to the Sixth Data Protection Principle and expressed in human rights terms. For example:
"Personal data shall be processed in accordance with the rights of data subjects under this Act and, in particular, personal data shall not be processed in a way that does not respect the private and family life or correspondence of data subjects".
By implementing a right to the privacy of personal data under the auspices of the Data Protection Act, the processing of personal data for the Special Purpose (i.e. freedom of expression purposes) will be left undisturbed; investigative journalism, for example, is unaffected by the change. Obviously this Principle has to be qualified in a way that engages the exemptions found in Article 8(2) of the Human Rights Convention (i.e. provide suitable exemptions for national security, law enforcement etc).
The effect of this change would explicitly link the Human Rights and Data Protection regimes and give the UK's Information Commissioner an explicit human rights role but only in the context of personal data. The Commissioner could thus challenge far ranging powers and individuals could ask for an assessment with respect to any legislation via the Sixth Principle. Such a change would empower the Commissioner, and protect the individual from the misuse of legislation by making the Human Rights regime more accessible in relation to privacy issues.
In summary, the Home Office's human rights team is not very good because human rights are not its main function. The Home Office exists to support immigration, policing and national security – all the organisations that need powers to invade privacy - it needs privacy protection like it needs a hole in the head.
It is therefore not surprising that Home Office legislation provides for wide ranging powers to help "their agencies" and the bare minimum when drafting provisions that protect individuals from misuse of these powers. Remember also, that the Home Office was responsible for the drafting in the Data Protection and FOI Bills, so the original weak regulatory regime and abundance of exemptions in these Bills can now be seen as almost an inevitable consequence.
The problems identified above are at the heart of the issues that bedevil the UK's privacy regime. These will continue until there are structural changes to that regime.
Finally a comment about this well publicised commentary about an Appeal. This is chaff thrown up to create smoke screen of a heavy defeat for a gullible press. The only appeal at the ECHR is to the 17-member Grand Chamber of the Court. Do you think the Home Office want to risk replacing a 7-0 defeat with one panel of eminent judges with one that is 17-0 as in the case of Marper?
References: For more analysis see "Nine principles for assessing whether privacy is protected in a surveillance society (Parts 1 and 2)" which explains why the current framework of privacy protection in the UK is deficient and how it can be improved. Also available “Human Rights Legislation and Government Policy towards national security – 2006” which explores data protection in the context of Parlimentary scrutiny, data protection, human rights terrorism and national security. Both from http://www.amberhawk.com/policydoc.asp
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