Overlooked - Liberty

Overlooked: Surveillance and personal privacy in modern Britain 107
The HRA is best suited as a means of allowing the individual to seek protection against the excesses
of the state 211 . As has been seen, it can be an effective way of ensuring that a celebrity is capable
of having their privacy protected from media intrusion. It has also been used successfully when
CCTV footage has been inappropriately passed by a local authority to the BBC for broadcast 212 .
However, the HRA is limited in use as it necessitates the bringing of an expensive action by a
wronged individual. As a consequence, its use in a mass surveillance society is limited. Furthermore,
the main tools of recompense for a successful case brought before the European Court of Human
Rights or through a domestic court under the HRA are financial damages and preventative action,
for example by way of an injunction. Breaches of privacy rarely lead to a quantifiable financial loss.
Similarly, injunctive action is often of little benefit as the Article 8 action is likely to have been brought
following the alleged privacy intrusion, so the ‘damage’ will already have been done. Because of the
time commitment and potential financial implication of lengthy legal proceedings, the HRA will not
always be an attractive or practical option.
The influence of the HRA is not, however, limited to litigation. All new laws are required to be HRA
compliant. S.3 HRA requires so far as possible, laws to be read in a way that is compliant with the
HRA while S.4 HRA allows courts to make a declaration that primary legislation is incompatible with
convention rights. Secondary legislation can be struck down if incompatible with the HRA. This power
to strike down secondary legislation is particularly relevant when considering information sharing
powers as there is a growing tendency to reserve the detail of sharing for secondary legislation. This
was apparent both with the ID Card Act 2006 and the Children Act 2004. The UK Borders Bill,
currently before Parliament, creates the framework for a Biometric Identification Document to be
issued to non-European Economic Area residents in the UK. This is the first step in the roll out of the
ID card regime. Again, nearly every detail on what information can be taken, who can gain access
and details of the purposes to which it can be put are reserved for secondary legislation.
In order to confirm that legislation is HRA compatible, every Bill when laid before Parliament must
have a ministerial declaration made under S.19 HRA that he or she believes that the legislation
complies with the HRA. Given the multiple requirements of Convention article compliance in the
HRA, it would be hoped that Article 8 provides significant privacy protection before laws are passed.
This is certainly true to an extent. In particular the Parliamentary Joint Committee on Human Rights
(JCHR) , a committee of both Houses set up to consider HRA compliance, will frequently publish
reports on legislation as it passes though Parliament. Often its observations on HRA compatibility
will be taken on board by the Government and concerns will be addressed before an Act passes
into law. However, repeated declarations by courts over anti terrorism legislation incompatibility, for
example, show that the Government does not always pay attention to concerns over HRA
compliance expressed by Liberty, the JCHR and others 213 .
211
Or to require the state to take action to safeguard rights through a ‘positive obligation’.
212
Peck v UK [2003] ECHR 44 (28 January 2003)
213
Government anti terrorism policy has repeatedly fallen foul of the Courts. In December 2004, the House
of Lords Appellate Committee decided by 8-1 that the detention of foreign nationals without trial under
Part 4 of the Anti Terrorism Crime and Security Act 2001 breached the HRA. The Control Order Regime
set up by the Prevention of Terrorism Act 2005 in order to replace Part 4 has also been declared HRA
compatible on several occasions and will inevitably also face final determination by the House of Lords in
due course.