Surveillance and ECHR Article 8; Three Questions Answered

When I started this site, I expressed the hope that it would soon become interactive,with people asking me to explain things I had written about, or asking me other topical questions about law and practice.  I was therefore pleased to receive this message from Rafae:

Firstly I would like to thank you for taking the time to write your blogs. As an A-Level student hoping to read law at university it is an eye opening and interesting resource that I thoroughly enjoy.

I recently read your publication regarding Prisoners’ Rights and the HRA and it made me wonder whether the Government’s Snoopers Charter, which would result in the mass collection of individuals’ data, would be in conflict with The European Convention on Human Rights, and in particular, Article 8.

Also if the Charter is implemented would this result in our Parliament overriding the ECHR? Or is it simply their interpretation  of ‘is necessary in a democratic society in the interests of national security, public safety’?

Furthermore if mass surveillance is carried out would judges and lawyers be exempt to ensure a fair trial. I feel such a situation harps back to a bygone era where the nobles and the normals lived according to different laws.

Thank you for taking your time to read my mail and I would love to hear your thoughts on the matter. I do wish you the best of luck with your blog.”

My answers to these questions are:

Q1. Would the Government’s Snoopers Charter (which would result in the mass collection of individuals’ data) be in conflict with The European Convention on Human Rights, and in particular, Article 8?

A1. Not necessarily.  David Anderson QC, the Independent Reviewer of Terrorism Legislation, provides an excellent summary of the effect of ECHR Article 8 on pages 74 to 83 of his report “A Question of Trust”, which he presented to the Prime Minister in June of this year.

He explains that in the context of investigatory powers, Article 8, which protects people’s “right to privacy”, is engaged not only where material is read, analysed and later stored with other authorities, but also when it is collected, stored and followed, even without human intervention.

However, because Article 8 is a “qualified” right (in contrast, for example, to the ECHR Article 3 right not to be tortured, which is an absolute right), an interference with a person’s right to privacy will be lawful if it passes what has been called a “triple test”.  It must be

  • in accordance with the law;
  • necessary in pursuit of a legitimate aim; and
  • proportionate.

This is what the current public debate about a new Regulatory Powers Bill is all about.  So long as the law is clear (and it seems to be accepted by everyone that the existing law is very far from clear), the lawfulness of the interference must satisfy the other two tests, and David Anderson explains their effect in paras 5.19 to 5.22 of his report.

Q2. If the “Charter” is implemented, would this result in Parliament overriding the ECHR, or is it simply their interpretation of “is necessary in a democratic society in the interests of national security, public safety..”?

A2.  There is no sign that the Government intends to structure its new Bill in any way that does not recognise the effect of ECHR Article 8.  Although any question whether an interference was indeed lawful will ultimately one for the courts (or the Investigatory Powers Tribunal, which is chaired by a High Court Judge) to decide, a big current controversy is: who should authorise the interference? Should it be the executive, or the judiciary, or a combination of the two?

Q3. Furthermore, if mass surveillance is carried out, would judges and lawyers be exempt to ensure a fair trial (I feel such a situation harps back to a bygone era where the nobles and the normal lived according to different laws)?

A2. I know of no specific exemption that applies to judges’ communications.  So far as lawyers are concerned, the law of legal professional privilege usually applies to protect communications between a lawyer and his/her client.  The privilege is the client’s (not the lawyer’s), and only the client can waive the privilege.  David Anderson deals with this in paras 5.44 to 5.48 of his report, where he refers to two recent English cases which deal with the interface between common law privilege and the new statutory surveillance regime.  In these cases judges were critical of aspects of the investigatory authorities’ regime, or of their conduct. In the first, McE v Prison Service of Northern Ireland (2009) UKHL 15 our highest court held that it was lawful, in some circumstances and where authorised expressly by statute, for the police to listen in to confidential consultations held at a police station between lawyers and their clients, but that the statutory safeguards and the Code of Practice for surveillance at that time offered insufficient protections in such a situation.  in the second case, the Belhadji IPT Case, judgment and final determination of 29th April 2015, the Investigatory Powers Tribunal held that the privilege communications of a claimant had been unlawfully intercepted and ordered GCHQ to destroy its copies of the relevant documents.

Finally, I strongly recommend David Anderson’s report for an authoritative, very clearly written, explanation of

  1. the problems,
  2. the governing law (which is still being developed) and
  3. possible solutions.

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