The proposals to change the human rights regime outlined in Ministry of Justice (MoJ) Consultation, “Human Rights Act Reform: A modern Bill of Rights”, are truly awful. This is especially the case when combined with the proposed restrictions on Judicial Review that helps ensure that public authorities process personal data lawfully in accordance with Article 8 (A.8) of the Human Rights Convention.
As will be seen in the next few blogs, the human rights legislation that protects us all and underpins the data protection regime is in serious jeopardy. I therefore encourage readers to enter the fray and make their views clear.
It goes without saying that these changes, if implemented, would significantly jeopardise the Adequacy Agreement with the European Commission. Does the Ministry of Justice (MoJ) consultation mention the impact on the Adequacy Agreement? Of course not; like the DCMS consultation “Data: a new direction”, it remains silent on this important issue.
In addition, the MoJ’s case for changing the UK’s human rights regime with respect to A.8 is wholly misleading. To use a topical idiom: the MoJ Consultation “is as truthful as a BoJo”.
In summary, the proposals are unacceptable and, in the next few blogs, I will explain why this is the case.
Summary of the changes
The text of the human rights listed in Schedule 1 of the Human Rights Act 1998 is not being changed; however, its interpretation and application is.
In summary, the MoJ proposed changes relevant to this blog (I.e. A.8) include:
- empowering domestic courts to apply human rights in the UK context. Comment: the UK Courts are not required to follow European Court of Human Rights judgments.
- changing the ability of individuals to protect their A.8 rights by requiring the UK courts to give “great weight” to the views of Parliament (e.g. the “public interest” or “necessity” is essentially determined by Parliament). Comment: public bodies will be presumed to be working in “the public interest” when they act in a way that is authorised by legislation enacted by Parliament.
- changing the balance between A.10 (freedom of expression) and A.8 (respect to private and family life); there will be a presumption that the former should prevail over the latter. Comment: this can be seen as a “thank you for your continued support”, from the Conservative Party, to its friends in the largely Brexit supporting media.
- making it harder for individuals to take human rights cases by “ensuring that spurious cases do not undermine public confidence in human rights”. Comment: the individual could be required to exhaust other remedies first, then obtain leave of the court in order to pursue an A.8 case and then show prior “significant disadvantage” or demonstrating an “overriding public importance”.
Note that the above constitute a subtle change to our human rights. The text of the actual rights has not changed but exercise of these rights, or an interpretation that favours the individual complainant, becomes very much harder to establish.
In summary, Government can claim “nothing has changed” (e.g. to the text of A.8 right), but a great deal will change when individuals attempt to exercise the A.8 right.
Adequacy down the tubes?
The threat to Adequacy Agreement arises because the European Commission thought that..:
- there was “… United Kingdom’s adherence to the ECHR … as well as its submission to the jurisdiction of the European Court of Human Rights”. (para 19; my emphasis). Comment: as explained above, the UK is no longer “submitting” to the jurisdiction of the European Court. The MoJ Consultation spells this out “…that the judgments and decisions of the European Court of Human Rights … are not part of the law of any part of the United Kingdom” (page 100 of MoJ)
- “….any person that considers that his or her rights, including rights to privacy and data protection, have been violated by public authorities, can obtain redress before the UK courts under the Human Rights Act 1998”. Comment: the MoJ proposals put considerable hurdles in the way of any person seeking such redress (e.g. show prior “significant disadvantage” etc; para 109).
- there was “continued adherence to such instruments” (i.e. “submission to the jurisdiction of the European Court of Human Rights”; para 120). ”. Comment: “continued adherence” is no longer the case.
I now move on to the misrepresentation of A.8 position as expressed in the MoJ Consultation.
The case of Marper v UK
Marper v the UK is an important example of an A.8 case that the MoJ Consultation ignores (see references).
The case surrounds a simple question: “should the DNA sample and the numerical representation of that DNA sample, be deleted if a suspect, charged of a crime, is acquitted?”. So should the police be able to retain DNA of people found innocent? Before reading on, what’s your answer: YES or NO?
As an aside, I explained in a blog 13 years ago that the current retention policy relating to DNA will eventually produce a DNA database that spans the population (see references).
Marper is interesting in that, when before the House of Lords (now called the Supreme Court), a panel of five law Lords (all senior judges) found unanimously in favour of retention of DNA by the police. By contrast, a full panel of ECHR Court judges found 17-0 in favour of Mr. Marper (i.e. unanimously the other way).
If the Government’s proposals were to become law, DNA of the innocent would have been lawfully retained by the police as the highest Court in the UK would have made an unanimous determination. Such retention would be very different for European police forces.
In addition, I suspect all the surveillance A.8 cases where the national security agencies and the police have overstepped the mark (e.g. bulk personal data collection; use of CCTV facial recognition) would have been lost if the MoJ’s proposals were law.
One obvious reason for this is that the claimant would not be able to overcome the “significant disadvantage” threshold. For instance, how do you know that you are subject to secret covert surveillance? Answer: you don’t know. So how can you establish “significant disadvantage” before taking action. Answer: you can’t.
In general therefore many actions on human rights grounds are likely to fall at first base. There will be limited leeway for a judge to allow a case to go to trial if a "highly compelling reason" of "public importance" can be established pre-trial, but this pathway is designed to be exceptional-use only.
Should the MoJ Consultation have given examples like Marper that illustrate the complex human rights issues involved (e.g. what happens if the UK is out of step with the rest of Europe) so that respondents can make an informed and balanced response? The MoJ answer is: “of course not”; the subject is not even raised.
The case of Ellis
Does the MoJ give examples where it thinks individuals have won A.8 cases without merit? Answer: YES (in spades), especially in the area of prisoner voting and deporting immigrants.
However, this “evidence” is presented in a very misleading way and this is illustrated by the case of R (Ellis) v the Chief Constable of Essex Police as used in the MoJ Consultation.
At the heart of Ellis is a simple question? Should the police be able to deter crimes by printing posters or leaflets that identify known criminals who have been arrested or put behind bars? So before reading on, what’s your answer: “YES”, “IT DEPENDS” or “NO”?
The MoJ consultation explains that the Ellis case:
“…has led to the situation where police forces face a real risk of legal challenge, where they wish to publicise the results of criminal activity or deter others by issuing posters identifying offenders who have been convicted for very serious crimes” (para 137).
Does the MoJ Consultation explain how the Court come to its conclusions in favour of Ellis? Of course not. So I will provide the missing links.
In its evidence, the Probation Service provided the following explanation to the Court:
"If Gary Ellis were to be made subject to the Essex police naming scheme, this is likely to make worse the risk of homelessness, drug misuse, reoffending, non-compliance on licence and is likely to increase the risk of harm to the public. If named there is also the distinct possibility of some collateral harm to the parents of Gary Ellis, his ex-partner and his daughter." (para 10-12 of the Ellis judgement).
So what’s your answer now: “YES” or “NO”?
In a later A.8 case, involving the London Borough of Brent (see references), the Ellis arguments resurfaced to prevent the distribution of a leaflet that identified youths who were excluded from a geographic area (e.g. a shopping centre). The youths were subject to an Anti-Social Behaviour Order (ASBO) which specifically excluded named individuals from that area and the police wanted to enforce the ASBO by distributing a leaflet that identified those who were subject to the ASBO.
So should the leaflet be circulated by the police (e.g. to shopkeepers)? YES” or “NO”?
In this case, the A.8 argument used in Ellis was rejected by the Judge in the following terms:
“It is clear to me that whether publicity is intended to inform, to reassure, to assist in enforcing the existing orders by policing, to inhibit the behaviour of those against whom the orders have been made, or to deter others, it is unlikely to be effective unless it includes photographs, names and at least partial addresses.” (para 40; my emphasis)
It is interesting to note that both the Met Police and L.B. Brent argued that the A.8 right was not engaged; the Judge rejected that view but concluded that “Article 8 could be involved if the publicity was found to be unnecessary or disproportionate”.
So these are the criteria that resolves the problem raised by the MoJ’s consultation in Ellis. If the publication of personal data is necessary and proportionate then there is no A.8 breach, if publication is unnecessary or disproportionate there is an A.8 breach.
In my view, all that is required is a proper assessment of necessity and proportionality; not a change in the law. Is this explained by the MoJ Consultation? Of course not. It wants to tip the scales in favour of Government.
Hence my conclusion that the arguments presented by the MoJ Consultation in support of the changes to the A.8 regime do not stand up to scrutiny.
Concluding comment
I have found one paragraph from the MoJ Consultation deeply unsettling and I wonder whether you read it the same way as I am. This paragraph reads as follows:
“The Prison Service has settled claims alleging a combination of negligence, inhuman and degrading treatment (under Article 3), the violation of the right to a privacy (under Article 8) and discrimination (under Article 14). This has cost the taxpayer around £7 million, including compensation paid out and legal costs” (bottom page 40).
Do you think the MoJ Consultation is suggesting that these settled claims are unfounded and should not have been settled? Does this then imply that a small amount of “negligence, inhuman, degrading treatment, violation of the right to a privacy and discrimination” is somehow acceptable to the Prison Service?
As the MoJ Consultation wants to change the law, the answer is an inferred “YES”; hence my alarm. Note that the Consultation is promoting the “Prince Andrew” defence: “No inhuman and degrading treatment occurred but we are paying compensation anyway (AND please sign our Non-Disclosure Agreement)”.
In other words, the worrying reason why the Government is wanting to change the human rights regime to “make the law difficult to use so we can get away with it”.
Data Protection Courses
Because of continued COVID uncertainty, the following courses can be attended in person, or via Zoom, or as a mixture if you something untoward happens. It's up to you.
- The next Data Protection Foundation Course is in London, and starts Tuesday, February 1st to 3rd (3 days); Full details on http://www.amberhawk.com/DPFoundation.asp or by emailing [email protected]
- The next Data Protection Practitioner Course is in London, and starts Tuesday, March 22 (6 days); Full details on amberhawk.com/StandardDP.asp or by emailing [email protected]
References
The Adequacy Agreement with the UK: https://ec.europa.eu/info/sites/default/files/decision_on_the_adequate_protection_of_personal_data_by_the_united_kingdom_-_general_data_protection_regulation_en.pdf.
Human Rights Consultation Document from the MoJ: https://consult.justice.gov.uk/human-rights/human-rights-act-reform/.
Marper v UK references: Case of S. and Marper v. The United Kingdom, (Applications nos. 30562/04 and 30566/04; judgement delivered 4 December 2008); Regina v. Chief , Constable of South Yorkshire Police (Respondent) ex parte LS and Marper [2004] UKHL 39, judgment delivered 22 July 2004).
Blogs relevant to Marper:
- Marper case exposes how Parliament cannot consider human rights issues: https://amberhawk.typepad.com/amberhawk/2010/01/uk-terror-case-judgment-illustrates-a-failed-system-that-cannot-protect-privacy.html.
- Example of divergence between the UK and European approach to A.8 in Marper: https://amberhawk.typepad.com/amberhawk/2009/11/uk-courts-view-any-data-retention-as-human-rights-compliant.html.
2009 blog “Indefinite retention produces a DNA database that spans the population”: https://amberhawk.typepad.com/amberhawk/2009/12/indefinite-retention-produces-a-dna-database-that-spans-the-population.html.
R (Ellis) v the Chief Constable of Essex Police ([2003] EWHC 1321 (Admin)) https://www.bailii.org/ew/cases/EWHC/Admin/2003/1321.html.
R (Stanley et al) v Metropolitan Police and L.B. of Brent ([2004] EWHC 2229 (Admin)): https://www.bailii.org/ew/cases/EWHC/Admin/2004/2229.html.
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