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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.
108 Overlooked: Surveillance and personal privacy in modern Britain The nature of Article 8, as opposed to other Convention rights, also limits its impact both on prelegislative and post-legislative processes. As argued earlier in considering DNA retention, Article 8’s impact will often be widely spread but with repercussions for the individual that are difficult specifically to quantify. This can be contrasted with, for example the Right to Liberty under Article 5 HRA. When Article 5 issues arise, they tend to impact upon a small number of people but in an extremely significant manner. When detention of foreign nationals was introduced in Part 4 of the Anti-Terrorism Crime and Security Act 2001 (ACTSA) or the Control Order regime (which replaced Part 4 ATCSA) was brought in by the Prevention of Terrorism Act 2005 (PTA), they were imposed on relatively few individuals. However, the consequences of detention under Part 4 ATCSA or of being made subject to a control order were extreme. Part 4 detention involved detention in a high security prison. Control orders can result in restrictions up to and including house arrest. The impact upon those subjected to these restrictions was such that Part 4 was made subject to a declaration of incompatibility with Article 5 HRA and other grounds while the High Court and Court of Appeal judgements so far on the PTA have also found the restrictions incompatible with Article 5 and Article 6. If the Control Order regime is finally abandoned, it is likely that the Government, in considering what proportionate and legitimate action is more in accordance with Article 5, will take these multiple breaches into account. The contrast with Article 8 is pronounced. As noted in the section on DNA, at present no domestic court has acknowledged that the permanent retention of DNA on the NDAD even engages Article 8. While the case of Marper, recently declared admissible by the European Court of Human Rights, might determine if Article 8 is engaged, the contrast between the approaches of the domestic courts towards Articles 5 and 8 remains profound. The Right to Respect for Privacy is just one of the 15 main articles contained in the HRA. The privacy of personal data is a far more significant part of the data protection framework contained in the DPA. The DPA’s genesis lies in the European Data Protection Directive of 1995. This, and the DPA itself, set out the framework and principles permitting the retention and dissemination of personal data. The most relevant parts of the DPA are the eight data protection principles and the accompanying Schedules. As stated in the introduction the essence of the Data Protection principles are: 1. Personal data shall be processed fairly and lawfully. 2. Personal data shall be obtained only for one or more specified and lawful purposes. 3. Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed. 4. Personal data shall be accurate and, where necessary, kept up to date. 5. Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes. 6. Personal data shall be processed in accordance with the rights of data subjects under this Act. 7. Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data.
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