Human Rights as to Heather and Len - Essay Example

1. The facts of this scenario raise complex issues relating to conflicting rights under the European Convention of Human Rights (the Convention namely, the right under Article 8 regarding respect for private and family life and the right under Article 3 to not be subjected to inhuman or degrading treatment. Before considering the parameters of these rights granted under the Convention, it is necessary to consider the extent to which they can be protected under English law. The Human Rights Act 1998 (HRA) incorporated the Convention into UK law and the preamble to the HRA states that its purpose is to “give further effect to rights and freedoms guaranteed under the European Convention on Human Rights”. Furthermore, section 2(1) of the HRA asserts that “A court or tribunal determining a question which has arisen in connection with a Convention right must take into account Convention rights” and any determinations by the European Court of Human Rights2. Moreover, section 3(1) imposes a positive obligation on judicial authorities to interpret all legislation “in away which is compatible with the Convention rights”. Accordingly, the HRA “has had the effect of incorporating the European Convention on Human rights into our law giving individuals rights which can be directly enforced in the UK courts3”. Accordingly, the parties mentioned in this scenario will potentially be able to rely on relevant rights accorded under the Convention under domestic law. Furthermore, section 6(1) of the HRA provides that “it is unlawful for a public authority to act in a way which is incompatible with a Convention right”. Therefore the relevant issue is whether Helpful Borough Council is performing a public function and is therefore a “public authority”. It is established that local authorities and councils are considered to be “public authorities” for the purpose of the HRA, therefore Heather and Len could potentially have a claim against the Council if they can establish breach of Convention rights. If the transfer goes ahead, the issue arises as to whether Heather and Len can bring an action against the private company for breach of Convention rights. The issue with regard to “hybrid” bodies is complex and case law has been inconsistent. In the Court of Appeal decision in Poplar v Donoghue4 for example, the courts had granted a possession order under the Housing Act 1988 to Poplar, which was a registered social landlord housing association. The issue arose as to whether Poplar was a public authority under the HRA and the Court of Appeal held that it was asserting that “in this case, in providing accommodation for the defendant and then seeking possession, the role of Poplar is so closely assimilated to that of Tower Hamlets that it was performing public and not private functions”5. On the other hand, in the case of R v Leonard Cheshire Foundation6it was held that public funding was a relevant (but not conclusive) indication that the body was a local authority and that most importantly it had to be considered whether the private body had stepped into the shoes of a public authority and was exercising its statutory powers. With regard to the current scenario, if Heather and Len can establish these requirements as regard the private transferee company, it will also have a potential claim against the company under the HRA for breach of Convention rights. 2. With regard to Heather and Len the central issue of contention is whether the proposed transfer and separation of married couples contravenes their right to family life and/or subjects them to degrading treatment under Article 8 and Article 3 of the Convention respectively. As stated above, section 3 of the HRA requires UK judicial authorities to interpret any legislation whether primary or subordinate in a manner which is compatible with Convention rights. Accordingly, if Heather and Len assert their rights under Articles 3 and 8, the courts will have a positive duty to consider whether the charges brought contravene these Convention rights. The majority of cases dealing with Article 8 have addressed the right to privacy and the inherent conflict between this right under Article 8 and the right to freedom of expression under Article 10 of the Convention. With regard to the protection of a person’s family life under the Convention, Article 8 permits interference on the following grounds: 1) in accordance with the law; 2) In the interests of legitimate objectives identified under Article 8(2); and 3) Necessary in a democratic society. With regard to the legitimate objectives criteria, Article 8(2) of Convention sets these out as follows: Acting in the interests of national security, public, safety or the economic well-being of the country; Acting for the prevention of disorder or crime, Acting for the protection of health or morals; and Acting for the protection of rights and freedoms of others. Whilst these legitimate objectives are widely formulated, it is generally necessary to distinguish between a lawful interference in someone’s private family life in the public interest, as opposed to an unlawful interference. In the current scenario, it would be difficult to justify that that the separation of an elderly couple is justifiable as a legitimate objective under Article 8(2). Alternatively, Article 3 is likely to be most pertinent to Heather and Len’s legal challenge to the proposed transfer and separation of them as a married couple. Article 3 of the Convention imposes an absolute right strictly prohibiting inhuman or degrading treatment or punishment. Degrading treatment is defined as “any treatment that is humiliating or debasing, that grossly humiliates a person before others or drives him/her to act in a way against his/her conscience or will”7. Furthermore, in the case of Chahal v United Kingdom 8it was asserted that “Article 3 enshrines one of the most fundamental values of democratic society. The Court is well aware of the most fundamental values of society……. The Convention prohibits in absolute terms ….. Inhuman or degrading treatment or punishment, irrespective of the victim’s conduct. Unlike most of the substantive clauses of the Convention … Article 3, makes no provision for the exceptions and no derogation from it is permissible”. Accordingly, Heather and Len could argue that the proposed measure, which would clearly impact their health, is in contravention of Article 3 of the Convention, which is an absolute right that cannot be derogated from. If successful in a claim under the HRA, then section 4(2) of the HRA provides that “if the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility”. Moreover, once a declaration has been made under section 4, section 10(2) of the HRA provides that a Minister of the Crown “may by order make such amendments to the legislation as he considers necessary to remove the incompatibility”. However, the remedial action provisions under section 10 are subject to the proviso that the “Minister of the Crown considers that there are compelling reasons for proceeding under this section”9. 3. The concept of a legally recognised right to privacy under UK law remains the subject of complex debate10, compounded by the role of the media as self-proclaimed democratic watchdog, highlighting the tension between defining the parameters of a privacy right in context of established legal presumptions against censorship. The issue of a legal right to privacy has come to the fore through discussions of media accountability in reporting, raising questions as to morality in journalism versus the constitutional right to freedom of speech11. The role of the media as an arm of the state of sorts12, acting as an accountability safeguard against individuals in power is vital to sustaining the constitutional objective of the UK as a democracy in substance. However, some argue that the public “right to know defence13” goes beyond the purpose of accountability and effectively grants a licence to the press to invade and dissect the details of an individual’s private life with impunity14. Free press is undeniably a democratic privilege15 however it is arguable that many families affected by the demise of a political career through revelations of infidelity, would no doubt have coped better with the tawdry details in private16. It is precisely these concerns regarding responsible press reporting which have led to a consideration of whether there needs to be a broader, general right to privacy protected within a legal framework. This controversial issue has been further complicated by the law of defamation, which protects an individual’s right to an unblemished reputation. However, it is this very focus that has permitted UK courts and legislators to avoid directly addressing the broader issue of a general right to privacy. It has been claimed that English law does not recognise a legal right to privacy “as such17” and concepts of privacy have found incidental protection by legal proceedings designed to protect other interests such as reputation under the law of defamation. However, unlike France and Germany, there has never been a distinct cause of action under UK law for invasion of privacy. Under UK law, claimant in a defamation claim must establish the following18: publication of a statement to a third party; publication identifies the claimant; and the statement is defamatory. The test of what is “defamatory” is what the ordinary reasonable person would think after seeing or reading the publication and meaning is to be determined by a jury. This in itself demonstrates that the purpose of defamation law is to protect an individual’s reputation. Furthermore, the requirement of publication coupled with the staggering costs involved in bringing a claim and establishing that the publication was in fact defamatory suggests that defamation law is intrinsically intended for the protection of people in positions of public authority and power, where reputation is important and funds are available to protect this “reputation”. The average individual cannot afford to bring a claim in defamation law to protect their reputation and the qualified privilege “right to know” defence highlights the limits of defamation law protection in any event. Accordingly, relying on a broad interpretation of defamation law is clearly inadequate to address the wider issues of individual privacy protection. A prime example of the UK’s failure to adequately protect privacy is the Kaye v Robertson case.19 In this case, the popular Allo Allo actor Gordon Kaye suffered severe injuries in an accident. While being treated at Charing Cross hospital, two tabloid reporters managed to enter Kaye’s hospital room (despite notices restricting access to family); took pictures of him and recorded an interview despite Kaye’s poor medical state. Notwithstanding attempts by Kaye to get an injunction against publication, the claim failed as there was no specific cause of action in law to prevent such an action. This in itself emphasises the moral justification for a right to privacy, however concepts of morality have always been difficult to enforce due to the ambiguity surrounding its limits. Glidewell LJ commented on the law of privacy in England and asserted that “It is well-known that in English law there is no right to privacy, and accordingly there is no right of action for breach of a person’s privacy20”. The lack of justification for privacy in law has been bolstered by the constitutional right to freedom of speech. The media argues that it has a positive duty to report on matters that are in the public’s interest to know. The right to freedom of speech is further supported by the express inclusion of Article 10 of the ECHR under the HRA21. Conversely, the HRA also implements Article 8 of the ECHR, which grants an express right to privacy and it was hoped that the courts would use the HRA to readdress the current imbalance in protecting individual privacy22. However, UK courts have struggled to strike a balance since implementation of the HRA and have failed to adopt a consistent approach to clarify the extent of the Article 8 right to privacy granted under the HRA. For example, in the case of Naomi Campbell -v- Mirror Group Newspapers Ltd23, Mr Justice Morland acknowledged that “there would be some merit in recognising that the original concept of breach of confidence has in this particular category of cases now developed into something different from the commercial and employment relationships with which confidentiality is mainly concerned.” This opinion clearly points to the possibility of a privacy right outside the ambit of breach of confidence however it suggests that protection of any such right would ultimately depend on the particular facts of the case. Furthermore, Mr Justice Morland’s views are expressed in the context of breach of confidence, which is distinct from an actionable right to privacy. Not only does this create further uncertainty, it also ignores the reality that only a privileged minority have funds to test such issues before the UK courts. It would also seem that the courts will attempt to preserve the Article 10 right to freedom of speech in their interpretation of the ECHR. For example in the case of A v B & Anor sub nom Gary Flitcroft v Mirror Group Newspapers24, Lord Woolf stated that “the manner in which the two Articles operate is entirely different. Article 8 operates so as to extend the areas in which an action for breach of confidence can provide protection for privacy. It requires a generous approach to the situations in which privacy is to be protected. Article 10 operates in the opposite direction. This is because it protects freedom of expression and to achieve this it is necessary to restrict the area in which remedies are available for breaches of confidence”. Accordingly, the UK courts have taken the view that although the ECHR provides for a right to privacy, any such right is limited by Article 10. However, this interpretation still fails to consider the content and ambit of the Article 8 right to privacy in the first place. On the other hand, a judicial decision that has been cited by some as a welcome step in addressing the current imbalance is the case of Douglas v Hello25 where it was held that the Article 8 right to privacy would prevail where it could reasonably be expected. However, the case was distinguished on its facts and the decision was influenced by concepts of celebrity, personality rights and breach of confidence, which again does not address the wider issue of a general right to privacy. The lack of clarity and dependency on ad hoc judicial decisions is undesirable in addressing the right to privacy and the interpretation of Article 8 has been disappointing in clarifying the legal parameters of privacy protection in the UK26. On the other hand, the practicability of implementing a separate law of privacy is also questionable. If it was introduced under the criminal law, it would clearly contradict the Article 10 right to freedom of speech as journalists would potentially face a constant threat of arrest, leading to limitless claims. Alternatively, a civil law system would arguably only benefit a privileged minority as only the rich could afford to bring an action, which may in turn influence a journalist’s decision in publishing a story thereby undermining the independence of the press. In conclusion, it is evident that the conflict between freedom of speech and the right to privacy is a legal minefield, obfuscated by the reluctance of the UK courts and legislators to clarify the issue. The current reliance on the law of defamation to provide incidental protection to privacy is inadequate to address the broader variances pertinent to the concept of privacy outside the boundaries of an unblemished individual reputation. Furthermore, the uncertainties surrounding the application of the qualified privilege defence also highlights the inherent deficiency of defamation law to protect privacy. The interpretation of the Article 8 right in practice has been disappointing in underlining the reluctance of UK courts to clarify its application. Despite acknowledging the Article 8 right, in practice courts have circumvented the need for clarification by limiting its scope through Article 10. Although some of the obiter judicial opinions hinting at privacy protection in certain circumstances are welcome in demonstrating a degree of flexibility; relying on ad hoc decisions is undesirable to legal certainty. UK courts and legislators need to enter into some official discussion and consultation on how to address the concept of a privacy right under UK law by analogy. Incidental protection through defamation creates continued uncertainty, compounded by ad hoc judicial decisions. Only when a focused taskforce is appointed to address the current inefficiencies can we begin to move towards a clear and consistent approach to privacy rights and the application of Article 8 under UK law. 4. The Convention rights are generally articulated in “negative” terms with legitimate derogations expressly provided for within the Convention provisions and Protocols, thereby facilitating scope for exploiting these “loopholes” with wide interpretation at national level in order to demonstrate artificial compliance with Convention rights27. However, Article 2 of the Convention which enshrines the “right to life” as a fundamental basic human right is an absolute positive obligation, which guarantees an “absolute right and derogations are not permitted even in difficult times of war or public emergency”. Article 2 imposes positive obligations on signatory states in order to ensure compliance with the basic right to life. This was evidenced in the case of Hughes v UK28, where it was asserted that Article 2 imposed an obligation on member states to assist in emergency, warn and monitor and give information if there was a threat to life. Moreover, in the case of LCB v UK29 Lord Diplock asserted that “an individual’s right to life…… is the most fundamental provision of human rights…..” and the Convention only permits an exception in “the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law”30. Furthermore, the case of Jordan v UK31which was a post HRA decision, highlighted the direct applicability of Article 2 being enshrined in UK law at domestic level. The European Court of Human Rights stated that Article 2 “safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, to which in peacetime no derogation is permitted under Article 15…….The object and purpose of the Convention as an instrument for the protection of individual human beings also requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective”32. Notwithstanding the rhetoric and express implementation of the Convention into UK law via the HRA, there is an inherent conflict with the rights under the Convention and applicability at domestic law in context international warfare, which raises questions as to the strength of the Article 2 right at national level33. Whilst Article 2 is expressed as an absolute fundamental right applicable even in times of conflict, there is a direct conflict with the law of aggression, which has always been troublesome to settle as a legal concept, especially as it is “intertwined with political elements”34. The concept of aggression as a criminal offence was fuelled by the International Military Tribunal at Nuremberg in the wake of the Second World War, where the Allied Powers were determined to prevent a repeat of the atrocities and assert a unified check on tyranny35. In general terms the crime of aggression is the attribution of criminal responsibility to an individual for an act of aggression, which is committed by a state36. In order to properly define the crime of aggression, it is essential to define the act of aggression, which is one of the elements of this crime. However, states systematically avoided adopting a binding definition of the act since the creation of the United Nations (“UN”). The problem is compounded by the blur between state responsibility and individual responsibility and what constitutes an individual for the purpose of state responsibility. As aggression deals with crimes by states and not individuals, it has been argued that as such, and without appropriate reference to the act of the individual it is not much use37. This is further compounded by the inherent conflict with the “absolute” right to life under Article 2 of the Convention. Furthermore, The UN charter grants discretion to the SC38 to determine the existence of an act of aggression and shall make recommendations or decide what measures shall be taken to maintain or restore international peace and security, however it still does not define ‘act of aggression”. The Charter of the United Nations39 proclaimed the goals of saving succeeding generations from the scourge of war, promoting human rights, justice and respect for international law and the Nuremberg trials were a cornerstone of the great effort to make the peace more secure40. However, in failing to define the act of aggression, the doors to exploitation were left open. Moreover, this lack of legal clarity clearly lends itself to selective interpretation of the Article 2 right in safeguarding individual rights particularly EU wide. The machinations of war are extremely complex and what constitutes excessive force in one situation differs from another. The spectrum is so broad that therein also lays the problem of having a definitive framework for the crime of aggression. A limited, more precise definition could also be exploited41, further devaluing the fundamental right to life under Article 2. For example in the case of R v Jones [2006] UKHL 1642, the House of Lords rejected an appeal of peace protesters who claimed that the Iraq war was an illegal crime of aggression under international law. Leading the panel, Lord Bingham asserted that “I am of the clear opinion that the crime of aggression is not a crime in the domestic law of England and Wales”43. “The Lords’ decision upholds the Court of Appeal’s ruling and echoes the government’s claim at the hearing that anarchy would prevail if the anti-war protesters were allowed to act as they did and pursue their claim in court”44. The Lords asserted that the crime of aggression under international law was not a crime under domestic law and that the Lords could not advise on the legality of the war. Lord Bingham further added that it was not “for the judges to decided what conduct should be treated as lying so far outside the bounds of what is acceptable in our society as to attract criminal penalties”45. This begs the question as to how can a crime in international law bring those to account for aggression when domestic law claims it has no jurisdiction. Without a clear definition and any attempt to incorporate international law on aggression into UK law, the doctrine of sovereign supremacy prevails. Moreover, whilst this case is arguably distinguishable as the HRA directly incorporates the Convention into national law, it nevertheless highlights the conflict that could potentially arise in between Article 2 and the murky legal waters of aggression, begging the question as to whether the Article 2 right can in fact be considered to be absolute. Bibliography Dame Mary Arden. The Future of the Law of Privacy. (1998-1999) 9 KCLJ 19. Buhm-Suk Baek, “The Definition and Jurisdiction of the Crime of Aggression and the International Criminal Court”, 2006 at http://lsr.nellco.org/cornell/lps/papers/19 Lord Bingham (2000). The way we live now: Human Rights in the New Millennium. 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