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Overlooked: Surveillance and personal privacy in modern Britain 13 The Human Rights Act 1998 The Human Rights Act 1998 came into force on 2nd October 2000 and incorporates the Convention into English law. The HRA gives ‘greater effect’ to Convention Rights in two main ways: • It makes it clear that as far as possible the courts in this country should interpret the law in a way that is compatible with Convention rights. • It places an obligation on public authorities to act compatibly with Convention rights. The HRA also gives people the right to take court proceedings if they think that their Convention rights have been breached or are going to be. Parliament makes laws but it is the courts that have to interpret them. The HRA makes it clear that when they are interpreting legislation the courts must do so in a way which does not lead to people’s Convention rights being breached. Moreover, the courts are now under a duty to develop the common law – the law which has been developed through decisions of the courts themselves – in a way that is compatible with Convention rights. If the law is an Act of Parliament, the courts have no choice but to apply the law as it is, even though it breaches Convention rights. However, the higher courts (the High Court, the Court of Appeal and the House of Lords) have the power to make what is called a ‘declaration of incompatibility’. This is a statement that the courts consider that a particular law breaches Convention rights. It is meant to encourage Parliament to amend the law, but the courts cannot force the Government or Parliament to amend the law if they do not want to. The position is different for secondary legislation. Secondary legislation is law made under the authority of an Act of Parliament. Rather than set out detailed provisions in an Act of Parliament, Parliament will frequently give the power to make detailed laws to a government minister. The Act of Parliament will give the minister the power to make law but the law itself will be set out in regulations or orders. For example, most social security law is set out in regulations rather than in Acts of Parliament. Where the courts find that an item of secondary legislation is incompatible with Convention rights, they have the power to strike the law down or not to apply it. This applies to all courts, not just the higher ones. The only circumstance where this is not possible is where the secondary legislation merely repeats a requirement of an Act of Parliament. The HRA requires public authorities to act in a way that does not breach Convention rights. The HRA does not define the term public authority, but it is clear that bodies like the police, local councils and government departments and agencies are all public authorities. Private individuals and bodies will not be public authorities for the purposes of the HRA unless they are performing a public function. The issue of whether a person or body is a public authority for the purposes of the HRA can be difficult to determine 16 . 16 This is a complex issue beyond the scope of this report. However, a Liberty briefing containing further information is available at http://www.liberty-human-rights.org.uk/pdfs/policy06/definition-of-publicauthority.pdf
14 Overlooked: Surveillance and personal privacy in modern Britain The Data Protection Act 1998 The Data Protection Act 1998 (DPA) implements the 1995 EU Data Protection Directive 17 and regulates the storage and use of information about individuals. The DPA serves two principal purposes. It allows individuals to access information held on them by a data controller by way of a ‘subject access’ request 18 . While subject access is extremely important, it is not as relevant to this report as the other main function of the DPA. This is to set out the framework by which any controller of personal data must comply. The DPA sets out eight guiding principles by which all personal data must be handled. To compress the wording of the DPA, personal data must be: (a) fairly and lawfully processed, and in particular; (b) processed for limited purposes, which purposes usually need to be notified to the individual concerned; (c) adequate, relevant and not excessive; (d) accurate; (e) kept for no longer than is necessary; (f) processed in line with individuals’ rights; (g) secure; and (h) not transferred to countries outside the EEA and several other approved countries without adequate protection. Under the DPA, all personal data must be fairly and lawfully processed. “Processing” personal data under the DPA means obtaining, recording, holding, transferring, or carrying out any operation on the data. Whether personal data has been lawfully processed is perhaps more readily ascertainable than whether it has been fairly processed. The DPA recognises that some types of data are particularly sensitive and places additional obligations for anyone processing sensitive personal data 19 . The DPA also sets out a number of exemptions which in many circumstances permit the processing of data without the need for reference to the data protection principles. For the purposes of this work the main exemptions are national security 20 , crime and taxation 21 and journalism literature and art 22 . 17 Directive 95/46/EC http://www.cdt.org/privacy/eudirective/EU_Directive_.html 18 Section 7 DPA 19 Under S.2 DPA sensitive personal data covers racial or ethnic origin of the data subject, their political opinion, their religious or spiritual belief, whether on not they are a member of a trade union, their physical or mental health or condition, their sexual life and the record of any alleged or actual criminal activity or sentencing 20 Section 28 DPA 21 Section 29 DPA 22 Section 32 DPA
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