Copyright © 1998 Lord Bingham of Cornhill.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.
In this article, which was originally delivered as a public lecture, Lord Bingham outlines the way in which human rights have been protected in the United Kingdom, examines the record of the United Kingdom before the European Court of Human Rights, considers the impact which the imminent incorporation of the European Convention on Human Rights into domestic law by the Human Rights Bill will have on citizens and the judiciary, and speculates on judicial development of the law on privacy.
In their more elevated moments, and after dinner, lawyers are wont to apostrophise the law as the ultimate guarantor of the rights and liberties of the citizen and to portray themselves as ministers of justice, protecting the weak against the strong. As Dr Christopher Hill reminds us in his recent book "Liberty against the Law" (Hill 1996), these perceptions have not always and universally been shared. Lawyers would have banned from Sir Thomas More's Utopia (Hill 1996, p 264), and would also have been forbidden in Gerrard Winstanley's ideal commonwealth (Hill 1996, p 268, fn 13). They were in fact forbidden to practise in Massachusetts in the early days of that colony (Hill 1996, p 268), a rule which some would no doubt like to reintroduce. In a plea to Parliament to reform the laws before it was too late, William Cole in 1659 argued that "The major part of the laws made in this nation are founded on principles of tyranny, fallacy and oppression for the benefit of those that made them" (Hill 1996, p 267). By many radicals the law was seen not as a protection of the weak against the strong, but as a means by which the strong perfected their dominion over the weak.
It was not to be expected that the great Dicey, a professor of law, would share these radical sentiments. But he did accord the law a relatively subordinate role in the protection of individual rights and freedom in our society. He saw a sovereign Parliament as the prime protection of the citizen, no doubt envisaging a Parliament of robust and independent-minded members, astute to detect and quick to remedy unjustified encroachments upon individual liberty. It is of course true that over the centuries Parliament has been responsible for many major strides towards the protection of fundamental human rights and freedoms. One thinks, for example, of the statutory protection given to the ancient writ of habeas corpus(1), to the extension of political rights with which the name of the second Earl Grey will be forever and gloriously associated, and of a series of measures improving the protection given to criminal defendants(2); in our own time one may instance the provision of legal aid to enable the less well-to-do to assert their legal rights as plaintiffs or defendants(3), to the detailed provisions of the Police and Criminal Evidence Act 1984 governing the rights of suspects, the introduction of time limits to restrict the periods of time spent by defendants in prison awaiting trial(4), and the measures seeking to outlaw discrimination on the grounds of sex and race(5). It is, however, plain that the robust and independent-minded member of Parliament is rarely able to make an effective impact when faced by a determined government. Governments for their part are understandably anxious to retain the support of the electorate and accordingly concentrate on measures which will earn the gratitude of a majority of the voters. Thus Parliamentary opinion is likely to reflect the opinion of the majority and show less concern for the interests of minorities. It is accordingly possible, looking back over our history, to identify a number of groups who have been either unpopular or disregarded and whose rights and freedoms have as a result been of little or no Parliamentary interest: Jews, Roman Catholics, dissenters; vagrants, vagabonds, beggars, gypsies; married women; children; prisoners; mental patients and the disabled; immigrants of various kinds, asylum seekers, aliens; homosexuals; strikers; single mothers; paedophiles. All of these have had occasion at some time or another to feel that the defence of their rights by a sovereign Parliament was something short of whole-hearted.
In Dicey's view the second great bulwark against infringement of the rights and freedoms of the individual was the force of public opinion. We have for centuries prided ourselves, not without reason, on our attachment to freedom. Thus in the great case of R v Somersett (1772). 20 St.Tr.1, Francis Hargrave, as counsel, was able to submit persuasively that the air of England was too pure for any slave to breathe(6). Alexis de Tocqueville, an acute observer, believed that in England there was "more liberty in the customs than in the laws of the people" and thought it impossible to think of the English as living under any but a free government(7). Public opinion is, however, the opinion of the majority; it rarely reflects the views of any minority, let alone an unpopular or disregarded minority. And while public opinion is capable of being generous and tolerant it is also capable of being vengeful and intolerant. Public opinion is an unreliable source of protection to those most in need of it.
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This was, of course, exactly the problem which confronted the framers of the United States constitution. On the one hand, they wanted to establish a government by, of and for the people, a government reflecting the will of the people much more directly and faithfully than any government in the Old World at that time did. On the other hand, mindful perhaps of the experiences of the earlier colonists as a persecuted minority fleeing from oppression, they wanted to provide effective protection for those who might fall foul of the popularly-controlled government. The solution was to enact the first fourteen amendments to the United States Constitution, almost contemporaneously with adoption of the constitution itself, so that the Bill of Rights (as these amendments were called) became, as it were, a codicil to the constitution and gave to those clauses the special, entrenched status of constitutional provisions. This is not a solution which we in this country have, until recently, been tempted to follow. Our Bill of Rights in 1689 did, it is true, contain some provisions which have later appeared in many other codes of human rights, such as the familiar prohibition of cruel and unusual punishment. But our own Bill of Rights was essentially part of an overall settlement between Parliament and the Crown, and did not purport to list or afford protection to what would then have been regarded as the basic rights of the citizen.
Protection of human rights in this country has accordingly depended, to a very large extent, on Dicey's third source of protection, the ordinary law of the land. Because of the way in which the common law develops, the ordinary law of the land has not formulated a list of rights and freedoms which may not be infringed. Rather, it has proscribed certain forms of conduct as unlawful, leaving the citizen free to do anything which is not so proscribed. Thus the freedom of the citizen has essentially rested on the absence of legal prohibition, a form of negative right which Dicey believed to afford the best protection. In many respects the ordinary law of the land, in particular the law of tort, has indeed, in this negative way, afforded the citizen considerable protection. Whereas a Bill of Rights might guarantee a right to liberty and security of the person, the law of tort has proscribed a threat of unwelcome physical contact as assault, deliberate and unwelcome physical contact as battery, and confinement of a person without lawful authority as false imprisonment. Where one person owes a duty not to cause physical injury to another, he is liable to that other in negligence if he fails to take reasonable care to prevent injury. The old aphorism that an Englishman's home is his castle finds its reflection in the legal rule that it is a trespass to enter land occupied or owned by another without permission. The courts have been reasonably generous in their application of these rules. Thus they have held it to be a battery to spit in someone's face(8), and have held that a criminal assault can be committed over the telephone(9). It has been held that an unwanted kiss, however affectionate in intention, may be a battery(10). While there is no recognised right of free expression, everyone is free to write or say what they like provided it is not libellous or slanderous, or in breach of confidence, or contrary to the Official Secrets Act, or calculated to incite public disorder or racial hatred, or blasphemous, or in contempt of a court order, or in breach of statute. In many respects the protection afforded in this way has been solid and effective. But the development of the law by the courts is inevitably piecemeal and incomplete. Where faced by an Act of Parliament which is clear in its meaning, or by subordinate legislation clearly within the powers conferred by a parent Act, the courts have been powerless to protect human rights even if the statute appeared to violate them. There have moreover been obvious deficiencies in the coverage which the common law has given. When Mr Malone complained that his telephone had been intercepted and his right to privacy in that way violated, it was held that he had no right to privacy(11). A similar conclusion was reached when Mr Kaye, a very well-known television actor, when in hospital following a very severe accident, found himself giving an interview to newspaper journalists to which, because of his mental state following the administration of drugs, he was in no state to consent(12). The law has been slow and hesitant in recognising a tort of harassment, although it is now clear that obsessive stalking of one person by another can both infringe the personal security of the victim and amount to a gross invasion of privacy (see Birks 1995). The law of defamation has caused widespread dissatisfaction, the media complaining that their freedom of expression is unreasonably circumscribed, and many members of the public feeling that they have no adequate redress against an irresponsible and intrusive press. In deciding the cases coming before them, the courts have of course done their best to reflect the values of society, but they have been hampered by the absence of any standard to which reference can be made when choosing, as is often necessary, between competing values.
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It is no doubt understandable that the British, proud of their tradition of liberty, were disinclined to emulate the example of the French revolutionaries who at Versailles in August 1789 made their Declaration of the Rights of Man and the Citizen, and there must also have been a natural reluctance to follow the example set by the rebellious colonists in the United States. Following exposure of the enormities which had been committed before and during the Second World War, one might perhaps have expected this country to give some form of statutory recognition to the United Nations' Universal Declaration of Human Rights in 1948, but it was generally felt, not least by us, that Britain's political and legal institutions had emerged from the trauma of these years with considerable credit. Thus when the Council of Europe, an international body then comprising the United Kingdom and nine other nations, promulgated the European Convention on Human Rights and Fundamental Freedoms, we were very much to the fore, both in signing the Convention at the end of 1950 and in ratifying, the first country to do so, in March 1951. But we took no steps to incorporate the Convention into our law, and did not until 1966 allow any British citizen to pursue a complaint in the Court of Human Rights at Strasbourg.
For some time there was no significant pressure to incorporate the Convention into our law. But in time such pressure did grow. The history of this debate has been very well described by Professor Michael Zander in his book A Bill of Rights? (1997, pp1-39), and that history need not be repeated. While some prominent figures, notably Lord Scarman, Lord Wade and Lord Lester of Herne Hill, argued strongly and persistently for incorporation, governments of both colours were adamantly opposed. The turning point came in March 1993 when the late Mr John Smith, as leader of the Labour Party, observed in a lecture:
"The quickest and simplest way of achieving democratic and legal recognition of a substantial package of human rights would be by incorporating into British law the European Convention on Human Rights." (Zander 1997, p 33)
From then onwards the Labour Party espoused the cause of incorporation, although the Conservative government remained strongly opposed.
The reluctance of successive governments to incorporate is on one view surprising, given the very basic nature of these rights. But it may well be that it was indeed the basic nature of these rights which fostered the view that in a country such as ours with a long and respected tradition of tolerance and respect for individual rights, no resort to the Convention was needed. It is salutary to remind oneself what these rights are: in short, the right to life; freedom from torture or inhuman and degrading treatment or punishment; freedom from slavery, servitude or forced or compulsory labour; the right to liberty and security of the person; the right to a fair trial; freedom from prosecution and punishment for offences not criminal at the time when they were done; the right to respect for private and family life, home and correspondence; freedom of thought, conscience and religion; freedom of expression; freedom of assembly and association; the right to marry and found a family; the right to an effective remedy; and the prohibition of discrimination in the enjoyment of the rights and freedoms guaranteed by the Convention. By the First Protocol, ratified by the United Kingdom but not incorporated into our law, there were further rights: to enjoyment of one's possessions; to education in conformity with one's parents' religious and philosophical convictions; and to free elections.
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These rights fall in different categories. Some are absolute, in the sense that a State may not opt out of, or derogate from, them, and unqualified. For example, no State may opt out of Article 2 (the right to life), Article 3 (the right not to be subjected to torture or to inhuman or degrading treatment or punishment), the first paragraph of Article 4 (the right not to be held in slavery or servitude) and Article 7 (the right not to be held liable for a criminal offence on the ground of any act or omission which had not been criminal at the time when the act or omission took place). Other Articles are not expressed in these absolute terms, but are subject to certain limited and express qualifications. This is true of Articles 8 (the right to respect of private and family life, home and correspondence); 9 (freedom of thought, conscience and religion); 10 (freedom of expression); and 11 (freedom of assembly and association). I quote the full terms of the last of these Articles, Article 11, as an example:
"1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join Trade Unions for the protection of his interests.
2. No restrictions should be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, or the police or of the administration of the State."
Thus, if a complaint is made that Article 11 has been violated, the first question will be whether the complainant's right to freedom of peaceful assembly or to freedom of association with others has been restricted or obstructed. This will involve considering what the right in question should, and does, mean. If it is found that the right has not been violated, then that is plainly the end of the complaint. If, however, it is found that one of these rights has in some way been restricted or obstructed, then the court is obliged to apply a three-fold test. First it must ask whether the restriction or obstruction is "prescribed by law". This means that it must be governed by legal rules, which are sufficiently clear and accessible to enable the individual citizen to find out what the rules are. This, generally speaking, limits the freedom of the authorities to make the rules as they go along, and to make decisions directed to a particular case(13). Secondly, the courts must ask whether the restriction or obstruction in question falls under one of the objectives listed in the Article, which has been held to be an exhaustive list and not simply by way of illustration(14). If the object of the restriction does fall within one of the listed headings, then the court comes to the third and most difficult question: is the restriction necessary in a democratic society? To obtain a favourable answer to this question the State whose conduct is in issue must show that the restriction fulfils a pressing social need and that it is proportionate to the aim of responding to that need. While it is not incumbent on a State to show that the restriction is indispensable, it is not enough for it to show that the restriction is reasonable. The European Court of Human Rights has imposed a strict test of necessity, relying on such concepts as pluralism, tolerance and broad-mindedness. The overriding principle is clear: since the right in question is to be regarded as fundamental, any restriction of it must be strictly justified(15).
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The belief that our sovereign Parliament, public opinion and the common law were together enough to ensure compliance with the standards embodied in the European Convention has not survived our acceptance of the compulsory jurisdiction of the European Court of Human Rights and the right for individual citizens to petition that court in 1966. The court has found violations by the United Kingdom in 50 cases, a larger number than in the case of any other State save Italy: and that total takes no account of the cases which have reached the European Commission of Human Rights, and which the United Kingdom has then settled to prevent the matter reaching the court. There are not very many Articles which the United Kingdom has not been found to have violated. In September 1995 we were held to have violated Article 2 (the right to life) in the famous case where members of the SAS shot dead three members of an IRA active service unit on a bombing mission in Gibraltar. This was a majority decision of the court, and there are many (including myself) who find the reasoning of the minority more persuasive. We have been found to have violated Article 3 (the right not to be subjected to torture or to inhuman or degrading treatment or punishment) in cases arising from interrogation techniques used in the North of Ireland (1978), birching of a juvenile offender in the Isle of Man (1978), the treatment of a German national whose extradition was sought by the United States to face a murder charge in a State where the death penalty was still in force (1989), protection against the risk of torture (1996) and deportation of a drug courier with AIDS (1997). We have not, to my knowledge, been held to have violated Article 4 (the right not to be held in slavery or servitude). Article 5 (the right to liberty and security of the person) has been violated in relation to mental patients (1981), the granting of parole to mentally disordered offenders serving life sentences (1987), detainees held in the North of Ireland (1988), freedom from arbitrary detention (1966) and deportation of an immigrant (1996). We have violated Article 6 (the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law) in relation to prisoners (1975, 1983, and 1984), children (1987 and 1995), the grant of legal aid (1984, 1990, 1994 and 1996), delay in the hearing of civil proceedings (1993 and 1997), access to legal advice (1996) and the right to a fair trial (once in 1996 and twice in 1997). We were in 1995 found to have violated the prohibition on retroactive criminal laws in Article 7, when a criminal defendant was made the subject of a retrospective confiscation order under the Drug Trafficking Act 1986. We have been held to have violated Article 8 (the right to privacy) in relation to prisoners (1975, 1983, 1984, 1990 and 1992), homosexuals (1981), the tapping of telephones (1984), the application of residence qualifications in the Channel Islands (1984), immigration (1985), the care of children (1987, 1989 and 1995) and the interception of an Assistant Chief Constable's telephone in a police headquarters (1997). We have not to my knowledge been held to have violated Article 9, the right to freedom of thought, conscience and religion. We have been held to have violated Article 10, relating to freedom of expression, in three cases: one (decided in 1979) when the Sunday Times were restrained under the law of contempt from full reporting of the Thalidomide litigation; the second (in 1995) when the award of £1.5 million damages by a libel jury to Count Tolstoy was held to be disproportionate to the aim of protecting the rights of Lord Aldington as the person libelled and the third in 1996 when a journalist had been punished for refusing to identify a source. We were found in 1981 to have violated Article 11 (the right to freedom of association) in an important case which had the effect of prohibiting Trade Union closed shops. I am aware of no violation by the United Kingdom of Article 12 (the right to marry). Breaches of Article 13 (the right to an effective remedy) were found in relation to prisoners (1983 and 1984), immigrants (1985), deportees (1996) and an Assistant Chief Constable. Discriminatory treatment of immigrants, contrary to Article 14, was found in 1985. A breach of Article 2 of the First Protocol to the Convention was found in 1982 when 2 children in a State school were caned contrary to their parents' beliefs concerning the proper education and punishment of children. For a nation proud of its culture of liberty the record is not, on any showing, a happy one.
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Yet throughout this period the courts have been strictly debarred from direct application of the Convention in cases coming before the British courts for the sound legal reason that the Convention formed no part of our domestic law and hence formed no part of our domestic legal system. The courts did what they properly could to side-step these difficulties. Where they found a statute to be ambiguous, they presumed that Parliament intended to legislate in conformity with the Convention and the international obligations of the United Kingdom rather than in conflict with them. Where the common law was uncertain, unclear or incomplete, the courts ruled, wherever possible, in a manner which conformed with the Convention. Where the courts were asked to construe a domestic statute enacted to fulfil a Convention obligation, they presumed that the statute was intended to meet that obligation and construed the statute accordingly. Where the courts had to exercise a discretion, they usually sought to exercise it in a way which did not violate the Convention. When the courts were called upon to decide what, in a given situation, public policy demanded, they had regard to the international obligations of the United Kingdom embodied in the Convention as a source of guidance on what British public policy required. When relying on European Community law, binding on the United Kingdom courts, the judges sometimes found themselves applying the Convention, to the extent that Community law included laws derived from the Convention. In these ways the Convention made a clandestine entry into British law by the back door, being forbidden to enter by the front. But these practices, if they mitigated the problem, did not solve it. Courts continued to reach decisions, without directly considering the impact of the Convention, in full knowledge that the Convention might compel a different answer. The dilemma was well explained by Lord Justice Simon Brown in a well publicised case concerning homosexuals in the Armed Forces:
"If the Convention for the Protection of Human Rights and Fundamental Freedoms were part of our law and we were accordingly entitled to ask whether the policy answers a pressing social need and whether the restriction on human rights involved can be shown proportionate to its benefits, then clearly the primary judgment (subject only to a limited "margin of appreciation") would be for us and not for others; the constitutional balance would shift. But that is not the position. In exercising merely a secondary judgement, this court is bound, even though acting in a human rights context, to act with some reticence."(17)
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In short, the court was unable to consider the Convention question whether the policy of the Ministry of Defence was necessary in a democratic society, and had to confine itself to the much more limited question whether that policy was, according to a strict test prescribed by the English authorities, irrational in the sense that no reasonable body could have adopted or maintained it.
I am, as is probably clear, an unqualified supporter of incorporation. The rights specified in the Convention are rightly regarded as fundamental. If the United Kingdom binds itself by international treaty to guarantee these rights to its citizens, it makes no sense that the rights should not be enforceable in and by British courts. Resort to the European Court in Strasbourg is very time consuming (cases take years and years to reach a decision) and not inexpensive. Decisions affecting this country, and other countries, would be strengthened if there were in the first instance a decision of a British court, and if British judges had the opportunity to contribute to the developing jurisprudence on human rights. It is, I think, very damaging to public confidence in our institutions that citizens should believe, usually but not always wrongly, that there exists a superior form of justice, available in Strasbourg but not at home. This is a field in which public perceptions matter. It is important to remember that nothing will be decided by judges after incorporation which would not be decided by judges now: the difference is that whereas at present cases are decided by judges of the forty member states who have acceded to the Council of Europe or are in the process of acceding, after incorporation the Convention will in the first instance be applied by British judges who can reasonably be expected to have the best knowledge of British life and society.
If one rejects as untenable the argument that British laws and practices already comply with the Convention, so that there is no need to incorporate the Convention into our law, there are really only three arguments against incorporation. The first is that it undermines the sovereignty of Parliament. If the courts were to be empowered to strike down, disapply or overrule Acts of Parliament on the ground that they conflicted with the Convention, there might be some force in this argument, although since the courts could only derive this power from Parliament, which could at any time take it away again, the argument has theoretical weaknesses; but it is certainly true, in my opinion, that if the courts were to be so empowered there would be inevitable and damaging conflict between Parliament, as the democratically elected forum of the nation, and the courts who are not democratically accountable in any ordinary sense. Wisely, however, the Bill before Parliament does not confer this power on the courts. Instead, the courts are required "so far as it is possible to do so" to read and give effect to primary legislation and subordinate legislation in a way which is compatible with the Convention. If, and only if, the higher courts are satisfied that a provision of primary legislation is incompatible with the Convention they will make a declaration to that effect, without making any order which would invalidate or overrule the primary legislation. If that declaration is challenged, no doubt an appeal will follow. If it is accepted, then the legislation requires the government of the day to implement a fast-track procedure to rectify the incompatibility in question. In applying Convention rules so far as possible, and in declaring that in given cases they are unable to do so, the courts are in no way challenging the sovereignty of Parliament, but are giving effect to what Parliament has ordained. The final decision on how to rectify any incompatibility with the Convention rests with Parliament. It is hard to see how even the most ardent democrat could regard this process as undermining the sovereignty of Parliament.
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A second argument is that the possibility of a House of Lords decision on a Convention issue being overruled at Strasbourg would deprive the House of Lords judicial committee of its status as a supreme court. It is true that at present no appeal lies from a decision of the House of Lords sitting judicially. But Parliament has never hesitated to overrule a decision of the House of Lords which it found uncongenial. And if faced with contentious matters of European Community law, the House of Lords is obliged to seek a ruling from the European Court of Justice at Luxembourg, and obliged to give effect to that ruling in making its ultimate decision: while this is not strictly an appellate process, the result is very much the same as if it were, the only difference being that it remains for the national court to pronounce the final decision. It will in my view do nothing to undermine the authority or dignity of the House of Lords as our supreme court that, in matters arising from interpretation or application of a multilateral international treaty, the final decision is accorded to the body established by the treaty as the ultimate authority on those questions. I am not aware that this argument has been advanced by any judicial member of the House of Lords.
Thirdly, it is sometimes argued that the effect of incorporation will be to politicise the judiciary. I do not myself accept that argument. It is not an effect which has been demonstrated in any of the other member states which have incorporated the Convention. But I do accept that the judges will be called upon to perform a task somewhat different from that which they have habitually performed. Perhaps I may revert to my earlier discussion of Article 11, relating to the right to free assembly and freedom of association. I do not think that the judges, guided by earlier cases on the subject, will have difficulty deciding what the content of the right is, although arguable borderline cases care bound to arise. Nor do I think they will find it hard to decide whether any restriction relied upon is "prescribed by law" and whether it falls under one or other of the exemptions specified in the Article. But when they come to decide whether any restriction relied upon is "necessary in a democratic society", then I think that the judges will be undertaking a task which will be, to some extent at least, novel to them. They will have to decide whether there is a pressing social need for the restriction, and whether the restriction is proportionate to the mischief against which it is directed: both of these are problems which do not ordinarily confront judges in their familiar task of deciding applications for judicial review according to the three-fold tests of illegality, irrationality and procedural impropriety. The problem was very well explained by the Lord Chancellor on the 16 December 1997 in his Tom Sargant Memorial Lecture when he said, under the heading of "The Morality of Decisions", the following (at p 9):
"...The Courts' decisions will be based on a more overtly principled, and perhaps moral, basis. The Court will look at the positive right. It will only accept an interference with that right where a justification, allowed under the Convention, is made out. The scrutiny will not be limited to seeing if the words of an exception can be satisfied. The Court will need to be satisfied that the spirit of this exception is made out. It will need to be satisfied that the interference with the protected right is justified in the public interest in a free democratic society. Moreover, the Courts will in this area have to apply the Convention principle of proportionality. This means the Court will be looking substantively at that question. It will not be limited to a secondary review of the decision making process but at the primary question of the merits of the decision itself.
In reaching its judgment, therefore, the Court will need to expand and explain its own view of whether the conduct is legitimate. It will produce in short a decision on the morality of the conduct and not simply its compliance with the bare letter of the law".
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Discussion of the new Bill so far would suggest, I think rightly, that one of the most difficult and sensitive areas of judgement will involve reconciliation of the right to privacy guaranteed by Article 8 with the right of free expression guaranteed by Article 10. While the law has up to now afforded some protection to privacy (in actions for breach of confidence, trespass, nuisance, the new tort of harassment, defamation, malicious falsehood and under the data protection legislation) this protection has been patchy and inadequate. But it seems very likely that difficult questions will arise on where the right to privacy ends and the right to free expression begins. The media are understandably and properly concerned that the conduct of valuable investigative journalism may be hampered or even rendered impossible. It is very difficult, and probably unwise, to offer any opinion in advance about where the line is likely to be drawn. But it may be helpful to consider the case recently decided in Germany, under German law and not under the Convention(18). The case concerned Princess Caroline of Monaco who was photographed by the press having a meal at a garden restaurant in France where she sat with a male friend on what appears to have been a romantic occasion. The case concerned a provision of the German constitution which states that "The dignity of man shall be inviolable". German law also provides that in general pictures of a person may be distributed only with that person's consent, but if the person is a person of contemporary history his or her consent is not required "unless legally protected interests of the person are infringed". The Supreme Court of Germany referred to the competing public interests in information protected by freedom of the press and the complainant's right to her personality. It observed:
"The protection of a person's private sphere of life has a special importance when the two interests are weighed against each other. The right to respect for one's own private sphere of life is an emanation of the general right to one's own personality, which grants every person an autonomous area of personal life within which he can develop and experience his own individuality, free from the interferences of others. The right to be left alone and "to belong to oneself" forms part of this area....As a result, since 1954, the German courts have, especially in the area of civil law, given particular weight to the right to respect one's own private sphere of life, i.e. treated it as a basic right guaranteed by the constitution which includes the right to one's own image....."(19).
The Supreme Court rejected an argument accepted in the court below that privacy stopped "at the doorstep" and that therefore the press were entitled to take photographs of the Princess who was dining in the corner of a public restaurant. The Supreme Court held that it was enough that the Princess had "retreated to a place of seclusion where [she wished] to be left alone, as [could] be ascertained by objective criteria, and in a specific situation, where [she], relying on the fact of seclusion acts in a way that [she] would not have done in public. An unjustified intrusion into this area occurs where pictures of that person are published if taken secretly or by stealth". A place of seclusion could be in a place open to the public so long as the person in question shut himself or herself off from the public. Such a place could include a garden restaurant so long as the fact that the person had shut himself or herself off from the public was reasonably obvious to third persons. The Supreme Court went on:
"When weighing up the various interests involved, the information value of the events depicted plays a significant role. The greater the interest of the public in being informed, the more the protected interests of the person of contemporary history must recede in favour of the public's need for information. Conversely, the need to protect the depicted person's privacy gains in weight as the value of information which the public obtains from the photographs decreases. In this case the photographs which show the plaintiff with Vincent Lindon in a garden restaurant contain little, if anything, of value. Here, according to the appeal court, mere prying sensationalism, and the public's wish to be entertained, which is to be satisfied by pictures of totally private events of the plaintiff's life, cannot be recognised as worthy of protection".
On the other hand, in the view of the court, when the Princess was in public, for example dining or shopping, there was a public interest in knowing how she behaved even if she was not performing a public function. In these situations she had not retreated to a place secluded from the general public. On this basis, it would appear that under German law a person in the position of Princess Caroline is in general entitled to privacy in respect of things done in private, or in exceptional circumstances things done in public. Those exceptional circumstances were where the complainant had made it clear that she had retreated to a place of seclusion. In that situation she was not exposed to photographers in the same way as if she had appeared normally in public. These, plainly, are exceptional circumstances which would only rarely arise. But it would seem quite clear that, for example, photographs taken of her on private property by use of a long range lens would have been held to be an objectionable invasion of her right to privacy.
Fears have been expressed that incorporation of the Convention may lead, via the guarantee of privacy in Article 8, to a new and far-reaching form of media censorship developed and administered by the Courts. Unsurprisingly, no doubt, I regard those fears as misplaced. In the first place, it should be noted that the media will, for the first time, in British history, enjoy a guaranteed right of free expression (not an absolute right, but a guaranteed right). Secondly, I point out that in the 30 years since we accepted the compulsory jurisdiction of the Strasbourg court, and although that court has found 14 violations of Article 8 proved against us, none of them has had anything to do with invasions of privacy by the media. But incorporation does not alter the substance of Convention rights; it simply makes those rights enforceable here. Thirdly, the Convention (understandably in view of its genesis) is an instrument designed to protect citizens against the state. So while a citizen complaining of an invasion of privacy by the media could complain that the Press Complaints Commission had given no adequate redress, it would be to the commission (assuming it to be a public body) that the citizen would primarily look.
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I think it likely that in the years to come we shall see some development in the law of privacy even in actions between private citizens. The recognition given by the Convention to the social value of privacy will, I think, encourage the courts to remedy what have been widely criticised as deficiencies in the existing law. But the common law scores its runs in singles: no boundaries, let alone sixes. The common law advances - to change the analogy - like the one venturing onto a frozen lake, uncertain whether the ice will bear, and proceeding in small, cautious steps, with pauses to see if disaster occurs. It seems to me at least possible that the German case I have mentioned may contain some clues as to the direction our law may take. But I cannot for my part believe there will be any threat to serious investigative journalism. It is one thing to hold that a public figure may not be photographed, against his or her wishes, when dining privately in a secluded corner of a public restaurant. It is quite another to impose any restriction on photographs or reports which may bear on the fitness of any public or responsible figure to discharge the duties to their office.
So, in this respect at least, I view the new millennium with optimism. The rights and freedoms of all our citizens will, I think, be more effectively protected than ever before. It is time, perhaps, to remind oneselves of Milton's injunction:
|"Let not England forget
her precedence of teaching
nations how to live"
Birks, P (1995) `Harrassment and Hubris: The Right to an Equality of Respect',
John Kelly Memorial Lecture, University College, Dublin 16 November.
Hill, C (1996) Liberty against the Law (London: Allen Lane).
Klug, F, Starmer, K and Weir, S (1996) The Three Pillars of Liberty. Political Rights and Freedoms in the United Kingdom (London: Routledge).
Rt Hon Nolan of Brasted and Sir Stephen Sedley (1997) The Making and Remaking of the British Constitution (London: Blackstone Press Ltd).
Zander, M (1997) A Bill of Rights?, 4th edn (London: Sweet & Maxwell).
(1) Habeas Corpus Amendment Act 1679
(2) E.g., Criminal Evidence Act 1898
(3) Legal Aid and Advice Act 1949
(4) Prosecution of Offences Act 1985, s.22
(5) Sex Discrimination Act 1975;Race Relations Act 1976
(6) But this famous phrase originated in the Court of Star Chambers: see Nolan and Sedley (1997) at p.51.
(7) Quoted in Klug, Starmer and Weir (1996), p 74, a comprehensive and provocative work to which I am much indebted.
(8) R v Cotesworth (1704) 6 Mod. 172.
(9) R v Ireland  3 WLR 534.
(10) R v Chief Constable of Devon and Cornwall, ex parte CEGB  QB 458.
(11) Malone v Metropolitan Police Commissioner  CL 344.
(12) Kay v Robertson  FSR 62.
(13) Sunday Times v UK (1997-80) 2 EHRR 245.
(14) Golder v UK (1975) 1 EHRR 524.
(15) Sunday Times v UK, above.
(16) See H L Hansard, 3 July 1996, cols. 1465-1467; and see Hunt (1997).
(17) R v Ministry of Defence ex parte Smith  QB 517 at 541.
(18) I am indebted to Mrs Justice Arden, Chairman of the Law Commission, for this example, given in a lecture at King's College London on 26 November 1997, "The Future of the Law of Privacy".
(19) BGH 19 December 1995, BGHZ 131 pp.332-346.