The UK Human Rights Act and the right to privacy

The role of the Human Rights Act in shaping UK jurisprudence has been discussed at length since the European Convention on Human Rights was brought into UK law. This ongoing discussion was recently fueled by former UK Supreme Court judge Jonathan Sumption’s Reith Lectures, where he voiced concerns in relation to European Court of Human Rights (ECtHR) jurisprudence specifically in relation to Article 8 and the right to privacy.

We disagree with this view. The Human Rights Act has led to concrete benefits both in terms of heightened human rights standards and avenues to justiciability. In this short piece, we take a brief journey to explore the nature of the relationship between UK courts and the ECtHR, through a privacy litigation lens.

Standard-setting in privacy

The Human Rights Act has played a key role in importing the protections and safeguards developed in Article 8 jurisprudence at ECtHR level into the UK legal framework.

In the last 20 years alone, the ECtHR has played a pioneering role in establishing limits to government surveillance. In Liberty, the ECtHR highlighted the dangers of bare surveillance powers, ruling that the absence of a Code of Practice to regulate the operation of the Intelligence Services Act 1994 was an important omission. More recently, the ECtHR decided in our case 10 Human Rights Organisations (pending judgment by the Grand Chamber) that the UK government’s mass interception programme violated the right to privacy and freedom of expression due to its failure to limit its interference with privacy to what was strictly necessary in a democratic society. In Catt, the ECtHR found that the systematic collection and retention of publicly available data for the UK’s Extremism Database constituted an interference with the right to privacy. These are only a few examples of privacy caselaw directly emerging from the UK, and setting valuable precedents in the privacy sphere.

All of the above judgments clarified and strengthened fundamental guarantees which have brought people in the UK closer to the full exercise, enforcement and protection of their right to privacy under Article 8. Importantly, from a judicial dialogue perspective, these judgments constitute only a starting point for the exploration of privacy matters.

For example, the question whether a reasonable expectation of privacy can arise in relation to data available in the public domain has been revisited by the UK courts since Catt in the context of the operation of the Prevent strategy in Butt.

The role of domestic jurisprudence

While we welcome the government’s call for evidence and the public dialogue it facilitates, the framing is inbued with negative assumptions. For example, the text of the call for evidence implies - rather unfortunately - that there is a risk of “over-judicialising” public administration, and for courts to be “unduly drawn” into matters of policy within the Human Rights Act framework.

The call for evidence’s implication that judicial activism solely takes place within the scope of the Human Rights Act is a serious misconception of the role played by the UK courts.

It is self-evident that an active judiciary is a symptom of a healthy democracy. In the UK’s case, it is in no small part the result of well-established public law principles and jurisprudence, which vastly pre-date the Human Rights Act and continue to independently flourish. After a 2016 Investigatory Powers Tribunal’s (IPT) decision that government hacking was lawful both under UK law and the European Convention, PI launched a public law challenge which culminated in a landmark 2019 Supreme Court ruling which found that IPT decisions were subject to judicial review. The ruling largely relied on domestic public law jurisprudence and principles, leaving Convention issues in the background.

It is worth noting that, in the earlier mentioned case 10 Human Rights Organisations, the ECtHR had an opportunity to consider the role of the IPT as a special tribunal. In that judgment, the ECtHR found that the IPT amounted to an “effective remedy”, capable of offering redress to applicants complaining of both specific incidences of surveillance and the general Convention compliance of surveillance regimes. In the absence of criticism against the IPT from the ECtHR, the Supreme Court’s reasoning was largely insulated from Convention considerations, and was wholly the result of domestic judicial analysis. Of course, the Supreme Court’s judgment struck at the heart of the IPT’s founding legislation - the Regulation of Investigatory Powers Act 2000 (RIPA) - , which included an ouster clause removing the supervisory jurisdiction of the High Court. While recognising Parliament’s concerns that High Court proceedings presented an unacceptable risk that secret material would be disclosed, the Supreme Court nonetheless found that the ouster clause only applied to appeals made on the merits, not judicial review actions.

The 2019 Supreme Court ruling is only one of many instances where the UK courts reached conclusions with far-reaching implications for human rights with little reference to ECtHR jurisprudence. Earlier this year, the High Court agreed with us that the use of general warrants by the government was unlawful. The ruling, which altogether avoided consideration of the compatibility of general warrants with Article 8, instead based its analysis and conclusion on 250 years of common law.

Having established that judicial activism in the UK has multiple strands beyond the application of the European Convention, we move on to consider the specific benefits conveyed by the Human Rights Act, and our experience in availing ourselves of remedies at ECtHR level.

Why the Human Rights Act remains crucial

Perhaps the Human Rights Act’s greatest strength is that it creates an additional forum for cases raising human rights issues to be heard. It is crucial that this ability is not hampered by domestic courts.

Under the well-established deference doctrine, the ECtHR will seldom try an issue that has not first been addressed before the domestic courts. While this ensures that the exhaustion of domestic remedies rule is observed, it inevitably makes the ECtHR dependent on domestic judicial findings.

We experienced this first-hand in September 2020, when the ECtHR declared our application to challenge government hacking under Article 8 of the Convention inadmissible, on the basis that domestic remedies had not been exhausted. At the heart of this decision, was the fact that the 2016 IPT judgment which grounded our application had not addressed the issue of the Convention’s jurisdiction in respect of equipment interference carried out outside the UK. Indeed the IPT had expressly reserved the issue for future consideration. But it had done so unusually. After acknowledging that the jurisdiction issue had been raised before it by the parties to the case, the IPT went on to conclude that “given the agreed difficult issues as to jurisdiction, we have an insufficient factual basis, assumed our otherwise, to reach any useful conclusion”. The reasons why the IPT chose to leave the issue undecided are not entirely clear. However, the fact is that it did lead the ECtHR to conclude that domestic remedies had not been exhausted. In other words, the application of the ECtHR’s exhaution of remedies rule in circumstances where domestic courts have deliberately avoided to deal with a Convention issue, is likely to result in that issue being left undecide both at domestic and supra-national level.

The Human Rights Act has proven itself to be a crucial tool in improving human rights standards in the UK at large, as well as an important avenue to justiciability. Going forward, we call on UK domestic courts to be conscious of the role they play in facilitating, or inadvertently obstructing, ECtHR scrutiny.