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Public Law Directions

Public Law Directions (2nd edn)

Anne Dennett
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date: 26 June 2022

p. 43518. Human rights in actionfree

p. 43518. Human rights in actionfree

  • Anne DennettAnne DennettSenior Lecturer, University of Lincoln

Abstract

This chapter explores how three Convention rights operate in practice: the right to life (Article 2), the right to a private and family life (Article 8), and freedom of religious belief (Article 9). Article 2 provides that everyone’s right to life shall be protected by law. No one shall be deprived of one’s life intentionally save in the execution of a sentence of a court following one’s conviction of a crime for which this penalty is provided by law. Article 8 provides that everyone has the right to respect for one’s private and family life, home, and correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law. Meanwhile, Article 9 provides that everyone has the right to freedom of thought, conscience, and religion; this right includes freedom to change and manifest one’s religion or belief.

Learning Objectives

By the end of this chapter, you should be able to:

Explain the significance and operation of specific Convention rights

Evaluate the substantive and procedural duties under Article 2

Evaluate the impact of Article 8 on the development of specific areas of UK law

Discuss issues arising from the application of Article 9

Compare competing rights and analyse how they are balanced by the courts

Introduction

What legal action could you take if you had a family member who died in police custody, or photographs of you in the street were published in a newspaper without your consent, or your employer refused to allow you to wear religious symbols at work? We explore these issues as we examine below how three Convention rights operate in practice: the right to life (Article 2), the right to a private and family life (Article 8), and freedom of religious belief (Article 9). We also discuss the interaction between Article 8 and Article 10 (freedom of expression). The defining feature of Articles 2 and 8 in action is the wide judicial interpretation which has led to their dynamic development and impact; Article 9, on the other hand, has been given much narrower application because of its impact on other rights.

Cross reference

See Chapter 19 for discussion of Article 11 (freedom of assembly)

To ascertain whether the claimant is a victim of an unlawful act by a public authority, the court must first determine whether a specific Convention right has been ‘engaged’. This means that a person has relevant rights which have been affected. The court must then determine whether the interference with those rights was justified; this varies according to the right in issue. See R (Lord Carlile of Berriew QC) v Secretary of State for the Home Department [2014] UKSC 60 [34] (Lord Sumption).

18.1p. 436 Article 2: the right to life

Article 2

1.

Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2.

Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.

Lord Bingham has stated that complying with the substantive obligations in Article 2 ‘must rank among the highest priorities of a modern democratic state governed by the rule of law’ and any breach ‘must be treated with great seriousness’ (R (Middleton) v West Somerset Coroner [2004] UKHL 10 [5]). However, there is more to Article 2 than appears from its wording. The ECtHR and, increasingly, the UK courts have developed multi-layered duties under Article 2(1).

Article 2 imposes three obligations on a state, as set out in Table 18.1.

Table 18.1 Article 2 obligations

Obligation

Comment

1. A duty not to take life intentionally apart from the exceptions in the Article

This is a substantive obligation, and also a negative obligation, ie the duty not to do something

2. The duty to protect life by setting up ‘a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life’ (Middleton [2] (Lord Bingham); see also R (Letts) v Lord Chancellor [2015] EWHC 402 (Admin) [66] (Green J))

This is also a substantive obligation and a positive obligation, ie a duty to take an action. It is sometimes referred to as a ‘systemic duty’ to set up a system designed to protect life, eg to prohibit homicide in national law

3. A duty to carry out an effective investigation into any death where it appears that one of the substantive obligations has been violated and agents of the state might be responsible (see Middleton [3] (Lord Bingham))

This is a procedural or investigative obligation which has been implied by the ECtHR (see McCann v UK, discussed presently)

However, the state does not breach Article 2 where a death results from the use of force which is no more than absolutely necessary to defend someone from unlawful violence, make a lawful arrest, or prevent a prisoner escaping, or to put down a riot or rebellion lawfully. Although Article 2(1) also refers to a lawful death penalty as an exception, all but two member states of the Council of Europe have signed Protocol 13, which abolishes the death penalty and, p. 437according to the ECtHR, strongly indicates that Article 2 has been amended so as to prohibit the death penalty (Al-Saadoon and Mufdhi v UK [2010] ECHR 282 [120]).

18.1.1 What engages the right in Article 2?

On its face, Article 2 mainly covers intentional killing and killing by state agents, but in recent years it has been interpreted increasingly broadly to cover any death in suspicious circumstances even where the state is not at fault. Lord Mance has listed:

deaths caused by agents of the state (such as the police, and intelligence and security services);

deaths in custody;

military conscripts and mental health detainees taking their own life;

‘other situations where the State has a positive substantive obligation to take steps to safeguard life’ (see R (Smith) v Secretary of State for Defence [2010] UKSC 29 [210]).

That last category has expanded to include:

An implied obligation on authorities, especially the police, to take preventive operational steps in some circumstances to protect the lives of people at risk from the criminal acts of another individual (Osman v UK (2000) 29 EHRR 245 [115–116]). This is known as the ‘Osman duty’.

An obligation on health authorities to protect the lives of patients in their hospitals, with an additional operational obligation where a patient presents a ‘real and immediate’ risk of suicide (see Powell v UK (2000) 30 EHRR CD 362; Savage v South Essex Partnership NHS Foundation Trust [2008] UKHL 74, [2009] AC 681 [68–72]). In Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2, [2012] 2 AC 72, the Supreme Court extended the obligation to protecting the life of a mentally ill woman who had been admitted to hospital informally (ie not detained under the Mental Health Act 1983) because of her attempts to take her own life. However, the UK’s regulatory framework governing withdrawal of medical treatment is Article 2-compliant (NHS Trust v Y [2018] UKSC 46).

The ECtHR has further broadened the obligations on the state to ‘any activity, whether public or not, in which the right to life may be at stake’ (Watts v United Kingdom (2010) 51 EHRR 66 [82]), requiring the state to react reasonably wherever the state knows or ought to know of a real and immediate threat to human life (Rabone [96–99] (Lady Hale)). See Figure 18.1.

Figure 18.1 Article 2 has expanded to cover these matters

Thinking Point

How has this moved beyond the express wording of Article 2?

18.1.2p. 438 The substantive obligations

The substantive obligations in Article 2 are the duty not to take life and the duty to protect life; they apply to the state and state agents. One of the leading cases on this is McCann v UK [1995], which involved the issue of what constitutes absolutely necessary force, and the proportionality of the broader response.

Case Close-up: McCann v UK [1995] ECHR 31

This case involved the shooting of three Irish Republican Army (IRA) suspects by members of the SAS (Special Air Service) in Gibraltar in 1988. The authorities were aware from intelligence that the Provisional IRA were planning a terrorist attack on Gibraltar; the likely targets were members of the Royal Anglian Regiment at a changing of the guard ceremony, and indications were that a car bomb might be used. A group of SAS soldiers arrived in Gibraltar to assist police in arresting the IRA active service unit if needed. The operation (Operation Flavius) aimed to arrest the suspects using minimum force, take them into custody, and enable evidence to be gathered for trial.

The IRA unit arrived in Gibraltar and surveillance was carried out. One suspect was observed to park a car, ‘fiddle’ with something between the car seats, and leave the vehicle; as a result, it was reported as a suspected car bomb. Two soldiers followed McCann and another suspect, Farrell, and opened fire, believing that McCann was going to detonate the car bomb after he looked back and moved his hand suddenly across the front of his body. Farrell moved and grabbed for her handbag and was also shot and killed; the third suspect, Savage, was shot dead by another soldier. The intention had been to kill to stop them becoming a threat and detonating a bomb. It was subsequently discovered that the suspects were unarmed, that they did not have a detonator, and that there was no bomb in the car. However, Farrell was carrying keys to a car that did contain explosives.

The parties’ arguments The government argued that the deprivation of life was justified under Article 2(2)(a), as the use of force was no more than absolutely necessary to defend the people of Gibraltar from unlawful violence. The applicants argued that the planning and execution of the operation was not in accordance with Article 2(2) so the killings were not absolutely necessary.

The court’s decision The court rejected the applicants’ allegations that the killings were premeditated ([180–184]). On the facts, the belief that the car contained a bomb was not implausible. But the court found by ten votes to nine that there had been a breach of Article 2. The use of force went beyond what was absolutely necessary to defend people from unlawful violence and breached Article 2(2)(a) because of:

the decision not to prevent the suspects from travelling into Gibraltar;

the failure of the authorities to make sufficient allowances for the possibility of error in their intelligence assessments;

the automatic recourse to lethal force when the soldiers opened fire ([213]).

The operation was therefore not proportionate.

p. 439Reasoning

Proportionality of the state’s response The court had to consider not only the use of deliberate lethal force by the agents of the state, but all the surrounding circumstances, including the planning and control of their actions [150]. The training and instruction of the agents and the operational control raised issues under Article 2(2) about the proportionality of the state’s response to the perceived threat of a terrorist attack ([156]).

Use of lethal force must be strictly proportionate The court accepted that the soldiers honestly believed that their actions were absolutely necessary to prevent a bomb being detonated and to protect lives ([200]). The use of force by agents of the state may be justified under Article 2(2) where it is based on an honest but mistaken belief, held for good reasons, otherwise there would be an unrealistic burden on the state and its law enforcement personnel.

Planning and control of the operation (the operational duty) Key questions were: was the operation as a whole controlled and organised in a way that respected the requirements of Article 2? Did the information and instructions given to the soldiers take adequately into consideration the right to life of the three suspects [201]? Were other courses of action available (eg arresting the suspects at the border or preventing them from entering Gibraltar [203])? The operational planning failed to make sufficient allowances for a margin of error or other possibilities, eg that the three suspects were on a reconnaissance mission, or might have been unlikely to explode the bomb on that particular occasion ([208]; see also [209–210]). The soldiers were trained to continue firing until certain that a suspect was no longer a threat, in contrast to the more cautious use of firearms by law enforcement personnel ([211–212]).

Summary

Article 2 required that the force used by the soldiers was strictly proportionate to the aim of protecting people against unlawful violence, and that the anti-terrorist operation was planned and controlled by the authorities so as to minimise, to the greatest extent possible, recourse to lethal force ([194]).

Thinking Point

How, if at all, do you think the operation in McCann could have been planned proportionately? See McCann [33–37]. Would taking action earlier have been feasible?

18.1.3 The procedural obligation: effective investigation

We stay with McCann here because, crucially, the ECtHR also made it clear that Article 2(1) implies a duty on states to carry out an effective investigation into any death occurring in p. 440suspicious circumstances (see also Keyu v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69 [66, 69]).

The state’s duty to protect the right to life under Article 2 ‘requires by implication’ some form of effective official investigation when individuals have been killed as a result of the use of force by agents of the state (McCann [161]).

This means there needs to be a procedure for reviewing the lawfulness of the use of lethal force by state authorities. In McCann there had been a ‘thorough, impartial and careful examination’ of the circumstances surrounding the killings ([163]) with a public inquest lasting 19 days (see [162]), so there was no breach of the procedural obligation in Article 2(1) on this ground.

The state’s duty to investigate (referred to as the procedural or investigative obligation) is important (R (Amin) v Home Secretary [2003] UKHL 51, [2004] 1 AC 653 [31] (Lord Bingham)), and Smith LJ has identified two layers of investigative obligation:

1.

A broader obligation to provide a legal system which gives access to open, independent investigation of deaths (the system in England and Wales always satisfies this obligation);

2.

A narrower obligation to initiate a thorough investigation into a death where there is an arguable breach by the state of its substantive duty to protect life (R (Humberstone) v Legal Services Commission [2010] EWCA Civ 1479 [67]; for key principles, see [21–24]).

18.1.3.1 What triggers the duty to investigate?

Any of the categories of death in section 18.1.1 can trigger the obligation to investigate where there are grounds for suspecting that the state may have breached a substantive obligation imposed by Article 2 (R (Smith) v Secretary of State for Defence [2010] UKSC 29, [2011] 1 AC 1 [70, 84] (Lord Phillips)) or where the state bears some potential responsibility for a death (Letts [71]). In the case of suicide by individuals under state care and control, such as prisoners, the fact that someone has died automatically triggers the duty to investigate because the state’s system for preventing suicide has failed, and the burden is on the state ‘to provide a satisfactory and plausible explanation’ (Jordan v UK (2003) 37 EHRR 2 [113]; and see Letts [71–74]).

Where an individual is compulsorily detained by a public authority and dies in state detention, the death must be reported to the coroner, who must undertake an investigation (section 1(2)(c) Coroners and Justice Act 2009). An obvious example is a death in custody; in Edwards v UK (2002) 35 EHRR 487 a man was killed by his prison cellmate, who had suffered from schizophrenia and was known to be violent; this information had not been passed on to the prison authorities, and there was a breach of the state’s obligation to protect Edwards’ life. However, state detention no longer includes individuals deprived of their liberty under the Mental Capacity Act 2005 (section 178 of the Policing and Crime Act 2017), so there is no automatic requirement to hold an inquest into their deaths unless there are concerns about the cause of death. For a thorough examination of the authorities, see Letts [58–91].

The UK’s framework for carrying out investigations into suspicious deaths consists of (a) inquests and (b) inquiries under the Inquiries Act 2005 (Keyu [117]; see Chapter 14). Both p. 441have a fact-finding function, and the ECtHR is satisfied that the inquest procedure in England and Wales is capable of fulfilling the requirements of Article 2 (Bubbins v UK (2005) 41 EHRR 458 [153]).

Traditional inquests only look at the cause of death. A more rigorous inquest that complies with Article 2 also considers any system failures leading to a death and steps taken to prevent it; this is known as a ‘Middleton inquest’ (after R (Middleton) v HM Coroner for Western Somerset (2004) 2 AC 182). ‘Middleton inquest’ is often used as shorthand for an Article 2-compliant inquest, and is required for all deaths in custody and killings by state agents.

18.1.3.2 The importance of effective investigation

The primary aim of an investigation is to ensure accountability for deaths involving state agents or bodies, or occurring under their responsibility. The purposes of the duty to investigate are:

to ensure so far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others. (R (Amin) v Home Secretary [31] (Lord Bingham)).

These are reflected in the ECtHR’s requirements in Jordan v UK ([105–109]). An effective investigation must be:

initiated by the state (not left to the next of kin to take action) and independent from people involved in the events;

capable of establishing the cause of death, whether the force used was justified, and leading to the identification and, if appropriate, punishment of those responsible;

carried out promptly and with reasonable expedition; this is essential to maintain public confidence in the state’s adherence to the rule of law and prevent any appearance of collusion in or tolerance of unlawful acts ([108]);

subject to sufficient public scrutiny to ensure accountability;

accessible to the victim’s next of kin to safeguard their legitimate interests.

See also Armani Da Silva v UK [2016] ECHR 314 [232–239, 257]; Edwards v United Kingdom [72–73]; R (L (a patient)) v Secretary of State for Justice [2008] UKHL 68, [2009] 1 AC 588 (Lord Philips); Letts [59]; R (Birks) v Commissioner of Police of the Metropolis [2014] EWHC 3041 (Admin) [52]; R (Birks) v Commissioner of Police of the Metropolis [2018] EWHC 807 (Admin); In the matter of an application by Geraldine Finucane for Judicial Review (Northern Ireland) [2019] UKSC 7 [134, 138].

Thinking Point

Note the importance here of:

investigation;

accountability;

public confidence that the state respects the rule of law.

p. 442Examples

Jordan v UK concerned the shooting of an unarmed man by police in Belfast in 1992. The inquest into his death was significantly delayed, and the Director of Public Prosecutions (DPP) decided not to prosecute any police officers. The ECtHR held that there had been a violation of Article 2 because of failings in the investigative procedures into his death ([145]): the police officers investigating the incident were not independent from the officers involved in it; there was a lack of public scrutiny, and of information to the victim’s family on the reasons for the DPP’s decision not to prosecute; the police officer who shot him could not be required to attend the inquest as a witness; the inquest procedure could not effectively identify or lead to the prosecution of any criminal offences ([130–131]); the applicant’s ability to participate in the proceedings as next of kin was prejudiced by legal aid not being available for inquests in Northern Ireland and witness statements not being disclosed in advance; the inquest proceedings did not commence promptly and were not pursued with reasonable expedition ([142]). See also Jordan v Lord Chancellor [2007] UKHL 14.

By contrast, in Armani Da Silva v UK [2016] ECHR 314, Jean Charles de Menezes, a Brazilian national, was shot and killed by the police in 2005 after being mistakenly identified as a suicide bomber. His cousin complained that the decision not to prosecute any police officer breached the state’s duty to ensure accountability for his death. The court held that the UK had complied with its procedural obligations to conduct an effective investigation under Article 2. The decision not to prosecute any officer was the result of a thorough, in-depth investigation of the responsibility of individual police officers and the police authority by the Independent Police Complaints Commission and Crown Prosecution Service. There had also been a criminal trial, a judicial review of the prosecutor’s decision, and an inquest.

See also Bubbins v UK (2005) 41 EHRR 458.

Summary

Article 2 implies a procedural obligation on the state to initiate an effective public investigation into any death in suspicious circumstances where there is an arguable breach by the state of its substantive obligations. The ECtHR has significantly broadened the range of deaths covered by Article 2.

18.1.4 Deaths before the Human Rights Act

Initially, the UK courts took the view that, as the Human Rights Act was not retrospective, there was no right to an investigation of a death before the Act came into force on 2 October 2000 (In re McKerr [2004] UKHL 12, [2004] 1 WLR 807). However, the Supreme Court later held that there was a duty to investigate a death before 2 October 2000 if the main investigations would take place after that date (Re McCaughey’s Application for Judicial Review [2011] UKSC 20, [2012] 1 AC 725 [61–63] (Lord Phillips); [110, 135] (Lord Kerr); Keyu [206, 208]; Šilih v Slovenia (2009) 49 EHRR 996; In the matter of an application by Geraldine Finucane for Judicial Review (Northern Ireland) [2019] UKSC 7 [83–109]).

p. 443Close-up Focus: Keyu v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69

In 1948, British soldiers killed 23 unarmed men while on patrol in a village called Batang Kali in Malaya (now Malaysia and then a British colony). The UK government referred to it as killing of bandits who had attempted to escape, but in 1969, one of the patrol members alleged that the victims had not been escaping when they were killed. The allegations were investigated by the Metropolitan Police between 1969 and 1970, and by the Royal Malaysian Police in 1993, but the investigations were closed down. From 2008 onwards, relatives of the victims campaigned for a public inquiry into the deaths, but government ministers refused to hold one. The campaign group argued that an inquiry was required under Article 2 ECHR (see section 16.4.2).

If the ECHR been in force in 1948, the killings would have occurred within the UK’s jurisdiction under Article 1 ECHR [189–90], but the issue here was that events had taken place before the ECHR was even created. The Supreme Court had to decide exactly when the ECHR entered into force; they called this ‘the critical date’. The majority held that it was the date when the UK recognised the right of individuals to petition the ECtHR in 1966 [81, 87] but Lady Hale thought it was the date when the ECHR came into force [290–291, 299].

The court held that the ECHR is not retrospective, but a state can have Article 2 obligations to investigate a death occurring before the ECHR entered into force where there are:

1.

relevant acts or omissions after that date (here, there had been no full investigation of the killings and no publicly available evidence suggesting that the killings had been unlawful before 1969 [75]);

2.

a genuine connection between the death and the critical date, which means there has to be a reasonably short time—no more than ten years—between the death and the critical date [76]. Therefore, as the killings occurred more than ten years before 1966, there was no genuine connection and the Article 2 claim failed [88–89] (though see the Finucane case [108]).

Lady Hale, dissenting, would have dismissed the Article 2 claim because the inquiry was to establish historical truth rather than legal liability [300] and it was difficult to find a genuine connection between killings before the coming into effect of the ECHR and obligations imposed by the ECHR [301].

See Harriet Moynihan, ‘Regulating the Past: The European Court of Human Rights’ Approach to the Investigation of Historical Deaths under Article 2 ECHR’ (2016) 86(1) British Yearbook of International Law 68.

18.1.5 UK soldiers and Article 2

The deaths of British soldiers in Iraq did not give rise to an Article 2 obligation to hold a public inquiry into the lawfulness of the Iraq invasion; that was made clear by the House of Lords in R (Gentle) v Prime Minister [2008] 1 AC 1356. But does Article 2 apply to protect British soldiers serving abroad? In R (Smith) v Secretary of State for Defence [2010] UKSC 29, the Supreme Court’s answer was: only if they were on premises under the army’s effective control such as a military hospital; otherwise, British soldiers on active service abroad were not within the UK’s jurisdiction under Article 1 ECHR and were outside the protection of the Human Rights Act. Private p. 444Jason Smith had died from heatstroke while on active service in Iraq, and his mother brought a claim for judicial review of the inquest into his death. Lord Phillips stated that the death of a soldier on active service did not trigger an automatic presumption that the state has breached its substantive Article 2 obligations; there had to be grounds for suspicion of a breach by the state ([84]).

In 2011, the ECtHR expanded the meaning of ‘jurisdiction’ to where British officials exercise ‘control and authority’ over foreign nationals overseas, even outside UK military bases (Al-Skeini v UK [2011] ECHR 1093). This meant that foreign civilians could fall within UK human rights protection when British soldiers did not. Consequently, in the landmark decision of Smith v MoD [2013] UKSC 41, the Supreme Court departed from the Smith [2010] case and held that UK human rights jurisdiction extended to members of the armed forces serving overseas, so the UK had to secure their protection under Article 2, even outside military premises. This means that Article 2 now applies to British soldiers in combat situations, but the court must only give effect to those obligations where it would be reasonable to expect protection of the individual and must not impose ‘unrealistic or disproportionate’ obligations on the state relating to the planning and conduct of military operations in armed conflict ([55, 76] (Lord Hope)).

18.1.6 The right to die?

Diane Pretty, who had motor neurone disease, argued before the UK courts and the ECtHR that the right to life in Article 2 also meant the right to choose when to die. She was challenging the DPP’s refusal to give an assurance that her husband would not be prosecuted if he assisted her to commit suicide (assisting suicide is a crime under section 2(1) Suicide Act 1961). The courts held that Article 2 is about protecting the sanctity of life and does not confer a right to die (see R (Pretty) v Director of Public Prosecutions [2001] UKHL 61, [2002] 1 AC 800; Pretty v UK [2002] ECHR 427; see also R (Purdy) v Director of Public Prosecutions [2009] UKHL 45, [2010] 1 AC 345). Claimants in ‘right to die’ cases therefore rely on Article 8 as the basis for challenge; it is to this article that we now turn.

Cross reference

See discussion on Pretty in Chapter 7

18.2 Article 8: the right to respect for private and family life

Article 8

1.

Everyone has the right to respect for his private and family life, his home and his correspondence.

2.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 8 is remarkably versatile and elastic, and has been relied on to enforce rights in a wide range of cases, from surveillance by the state to challenging the law on assisted suicide, as shown in the examples that will be given. The object of Article 8 is to protect individuals against p. 445arbitrary interference by public authorities. It is a qualified right so interference with it may be justified under Article 8(2), but any interference must be in accordance with the law, pursue a legitimate aim and be necessary in a democratic society, so a fair balance must be struck between the competing interests of the individual and the community. Being ‘in accordance with the law’ requires safeguards which are ‘essential to the rule of law because they protect against the abuse of imprecise rules or unfettered discretionary powers’ (R (P) v Secretary of State for the Home Department[2019] UKSC 3, [2019] 2 WLR 509 [41] (Lord Sumption)).

Article 8(1) comprises four main areas of protection:

private life, which includes privacy;

family life;

home;

correspondence.

Thinking Point

What is being protected in the different examples below—for example, personal information, family life?

Surveillance The state can interfere with Article 8 rights on the grounds of national security, but interception of communications, such as phone tapping, must be in accordance with the law (Malone v UK [1984] ECHR 10). This requires the law to be compatible with the rule of law, that is, it must be sufficiently accessible and foreseeable for individuals to regulate their behaviour. In Liberty v UK [2009] 48 EHRR 1, the ECtHR found a violation of Article 8 because UK domestic law did not indicate clearly enough the extent of the state’s discretion to intercept communications, particularly on examining, sharing, and storing intercepted material, so the interference was not in accordance with the law. In Liberty v GCHQ [2014] UKIPTrib 13_77-H, the Investigatory Powers Tribunal set out key requirements for Article 8 compliance: there must be controls on the state’s discretion, rules must be clear, and their scope must be publicly available where possible so that people can foresee any interference with their privacy ([37]). See also Privacy International v Secretary of State for Foreign and Commonwealth Affairs [2018] (IPT/15/110/CH); R (Liberty) v Secretary of State for the Home Department [2018] EWHC 975 (Admin); R (Liberty) v Secretary of State for the Home Department [2019] EWHC 2057 (Admin).

Obtaining personal information In Roche v UK [2008] ECHR 926, the applicant was suffering health problems after being exposed to mustard gas and nerve gas during tests at Porton Down in 1962/3, and he had been given inadequate access to information about the tests when he had requested his medical and test reports. The ECtHR held that there was a violation of Article 8 because the UK had not provided an effective, accessible procedure giving access to relevant and appropriate information to enable him to assess any risk to which he had been exposed during the tests ([168]).

Deportation Foreign nationals may be deported from the UK on various grounds; for example, their leave to remain in the UK may have been refused, or they may have been convicted of a crime and may be deported if it is conducive to the public good (deportation is the Home Secretary’s decision). However, they may also have married and had a family in the UK, which engages their Article 8 rights, which need to be balanced against the public interest in removal—although only ‘very compelling’ human rights grounds will successfully resist deportation (Ali v Secretary of State for the Home Department [2016] UKSC 60). The effect of deportation on all family members must be considered, particularly children (see Beoku-Betts v Secretary of State for the p. 446Home Department [2008] UKHL 39; ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; Makhlouf v Secretary of State for the Home Department (Northern Ireland) [2016] UKSC 59). In R (Kiarie and Byndloss) v Secretary of State for the Home Department [2017] UKSC 42, the Supreme Court held that the ‘deport first, appeal later’ scheme (see section 8.3.2) was incompatible with the claimants’ right to respect for private and family life; they needed the opportunity to bring their appeals and give live evidence from within the UK.

Challenging the law on assisted suicide In Pretty v UK [2002] ECHR 427, Diane Pretty asked for a declaration that section 2(1) of the Suicide Act was incompatible with her rights under Article 8. The court held that Article 8 included a ‘right to self-determination’ but the ban on assisted suicide was not disproportionate so Article 8 was not breached. In R (Nicklinson) v Ministry of Justice [2014] UKSC 38, two judges took the view that the ban on assisted suicide did breach Article 8 but the majority thought it was for Parliament to decide. Four years later, Noel Conway unsuccessfully sought a declaration that section 2(1) was incompatible with his rights under Article 8, which he argued required the law to be adjusted to allow others to assist to enable him to commit suicide; the Court of Appeal held that section 2(1) achieves a fair balance between the interests of the wider community and the interests of people in his position (R (Conway) v Secretary of State for Justice [2018] EWCA Civ 1431).

Cross reference

See discussion on Nicklinson in section 7.4.1.1

Private life In this category, changing social concerns can significantly shape the law. In R (Elan-Cane) v Secretary of State for the Home Department [2020] EWCA Civ 363, although it was held that HM Passport Office’s policy of not issuing non-gendered passports was not an unlawful breach of the claimant’s Article 8 rights, the court recognised that Article 8 rights include gender identification ([47]). In R (Steinfeld and Keidan) v Secretary of State for International Development [2018] UKSC 32, [2020] AC 1, the Supreme Court declared that sections 1 and 3 of the Civil Partnership Act 2004 were incompatible with Articles 8 and 14 by not allowing heterosexual couples to enter into a civil partnership; the Civil Partnerships, Marriages and Deaths (Registration Etc.) Act 2019 and Civil Partnership (Opposite-sex Couples) Regulations 2019 changed the law to extend civil partnerships to heterosexual couples. While the human rights compatibility of Northern Ireland’s abortion legislation was unsuccessfully challenged in In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland) [2018] UKSC 27—no declaration of incompatibility was made because of issues on standing—five Justices would have made a declaration, and dicta urging the need for the law to be reviewed sent a powerful message to legislative and executive bodies. The law was subsequently changed by The Abortion (Northern Ireland) (No 2) Regulations 2020 made pursuant to the Northern Ireland (Executive Formation) Act 2019.

Article 8 has also significantly developed protection of privacy against press intrusion, which we examine next.

18.2.1 Privacy against press intrusion

The driving force of Article 8 on UK law’s development can be seen here, and this category of case raises two important issues.

1.

It involves enforcement of Article 8 rights against other individuals or private bodies, not against the state; Article 8 protects privacy only against public authorities.

The courts, as public authorities, must act compatibly with the parties’ Convention rights (section 6 HRA 1998), so the question is whether an individual is entitled to have their privacy protected by the court (see Dame Elizabeth Butler-Sloss P in Venables v News Group Newspapers p. 447Ltd [2001] Fam 430, 446). The ECtHR has also recognised that states are obliged to protect one individual from an unjustified invasion of private life by another individual, and its courts are obliged to achieve that result (Douglas v Hello! (No 3) [2005] EWCA Civ 595 [49] (Lord Phillips)).

2.

For the courts to do this, domestic law needs to provide a cause of action (see Campbell v MGN [49] (Lord Hoffmann)), but there is no privacy statute and no free-standing tort of invasion of privacy in English law (Kaye v Robertson [1990] EWCA Civ 21; Wainwright v Home Office [2004] 2 AC 406). So how can the UK courts protect privacy rights?

The solution is that, while there has never been a common law tort of privacy in the UK, there was—and still is—an equitable action for breach of confidence. This required a relationship between the parties that gave rise to a legal duty not to disclose confidential information, such as solicitor and client, or employer and employee (see Coco v Clark [1969] RPC 41; Seager v Copydex [1967] 2 All ER 415; AG v Jonathan Cape [1976] 1 QB 752; AG v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109). This is what the courts have used as the basis for protection of privacy.

Thinking Point

Track the way in which the UK courts extend privacy rights in what follows.

The first post-HRA ‘privacy’ case against the media was Douglas v Hello! Limited [2001] EMLR 9, where Michael Douglas and Catherine Zeta-Jones successfully obtained an injunction to prevent Hello! magazine from publishing unauthorised photographs of their wedding. Their argument was based on breach of confidence and Article 8, and the Court of Appeal held that they had a legal right to respect for their privacy. The law no longer needed an artificial relationship of confidentiality between the parties and could recognise privacy as a legal principle based on personal autonomy ([126] (Sedley LJ)); this relates to an individual’s control over facts about their identity, such as ‘name, health, sexuality, ethnicity … image’ (R (Wood) v Commissioner of Police of the Metropolis [2009] EWCA Civ 414, [2010] 1 WLR 123 [21] (Laws LJ)).

In Douglas v Hello! Sedley LJ observed that the ‘common law develops reactively’ ([109]) and has a ‘perennial need … to appear not to be doing anything for the first time’ ([111]). However, he concluded that the common law had reached a position ‘to respond to an increasingly invasive social environment by affirming that everybody has a right to some private space’ and that the Human Rights Act required the courts to give effect to the right in Article 8 ([111]; see also [61, 64–74] (Brooke LJ); [113–127] (Sedley LJ)).

Thinking Point

What is driving the expansion of the law here?

Stirring Article 8 into the mix breathed new life into the law on privacy. As Lord Woolf CJ has explained, the courts were developing the law so as to give effect to Convention rights and were acting compatibly with the ECHR by ‘absorbing the rights which Articles 8 and 10 protect into the long-established action for breach of confidence … giving a new strength and breadth to the action so that it accommodates the requirements of those articles’ (A v B [2002] EWCA Civ 337, [2003] QB 195 [4]; see also Theakston v MGN [2002] EWHC 137 (QB)). At first it was p. 448uncertain whether, by extending breach of confidence in this way, the courts had created a new right of privacy in English law, but the law took a firm step forward in Campbell v MGN.

Case Close-up: Campbell v MGN Limited [2004] UKHL 22

In this case, the House of Lords held by 3 to 2 that C’s privacy had been invaded by publication of an article detailing her treatment for drug addiction, accompanied by photographs of her leaving a Narcotics Anonymous meeting. The House of Lords confirmed the law’s direction of travel, that is, breach of confidence protected against infringement of privacy.

Lord Nicholls took the view that:

Breach of confidence no longer needed a confidential relationship and had changed its nature even before the Human Rights Act (citing Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, 281). The law now imposed a duty of confidence whenever a person receives information they know or ought to know is ‘fairly and reasonably to be regarded as confidential’. But it was better encapsulated as ‘private information’ ([14]).

‘The time has come to recognise that the values enshrined in articles 8 and 10 are now part of the cause of action for breach of confidence.’ Those values applied as much in disputes between individuals or non-governmental bodies as between individuals and public authorities ([17–18]).

The touchstone is whether the person in question had a reasonable expectation of privacy in respect of the disclosed facts [21].

See generally [11–22].

Lord Hoffmann reasoned that:

The right to privacy was an underlying value of breach of confidence [43].

There had been two developments of the law of confidence: (a) acknowledging the artificial distinction between confidential information obtained through a confidential relationship or in another way; and (b) accepting that the privacy of personal information is worth protecting in its own right ([46]).

This had led to ‘a shift in the centre of gravity’ of breach of confidence when used as a remedy for the unjustified publication of personal information ([51]) (though Lord Hope doubted this [86]).

‘The cause of action focuses upon the protection of human autonomy and dignity—the right to control the dissemination of information about one’s private life and the right to the esteem and respect of other people’ [51].

Baroness Hale was careful to point out that:

‘[T]he courts will not invent a new cause of action to cover types of activity which were not previously covered … our law cannot, even if it wanted to, develop a general tort of invasion of privacy’ ([133]).

Reasonable expectation of privacy ‘is a threshold test which brings the balancing exercise into play’. Once the information is identified as private, the court must balance the claimant’s interest in keeping the information private against the interest of the recipient in publishing it ([137]).

p. 449Summary

This decision shaped breach of confidence into an action based on misuse of private information by identifying a change of focus in the law. Did the claimant have a reasonable expectation of privacy in relation to the information in question?

The law marched on, despite Lord Phillips MR’s dissatisfaction at having to ‘shoe-horn’ claims for publication of unauthorised photographs of a private occasion into breach of confidence (Douglas v Hello! (No 3) [2005] EWCA Civ 595, [2006] QB 125 ([53]). McKennitt v Ash [2006] EWCA Civ 1714, [2008] QB 73) emphasised the misuse of private information, considering two questions: (a) is the information private? (b) If so, does the claimant’s interest under Article 8 yield to the right to freedom of expression and publication? In Mosley v News Group Newspapers [2008] EWHC 1777 (QB) [10], Eady J framed the test as:

1.

The claimant must show a reasonable expectation of privacy.

2.

The court must weigh competing Convention rights with ‘an intense focus’ on the facts of the case. Is there a public interest consideration to justify intrusion, such as to expose a crime or hypocrisy?

The balancing of competing interests became more pronounced here. Eady J highlighted the modern perception that there is a public interest in respecting personal privacy and the court must take account of conflicting public interest considerations and evaluate them according to increasingly well recognised criteria ([130]). In Mosley, there was no public interest in publishing images of private sexual activities between consenting adults. See also Eady J’s statement of the principles in CTB v News Group Newspapers Ltd [2011] EWHC 1232 (QB) [19–28, 31].

18.2.1.1 A reasonable expectation of privacy

If the claimant can show a reasonable expectation of privacy, this engages Article 8 (the ‘touchstone’ for engagement). In 2004, the ECtHR decided in Von Hannover v Germany (2005) 40 EHRR 1 that photographs of Princess Caroline of Monaco shopping and playing tennis breached her right to privacy, which broadened expectations of protection of private life, even in public places. So in Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446, where photographs of JK Rowling’s son were taken in the street without consent, the Court of Appeal held that the child had a reasonable expectation of privacy; factors to take into account included:

the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher ([36] (Sir Anthony Clarke MR)).

Similarly, in Weller v Associated Newspapers [2015] EWCA Civ 1176, Paul Weller’s children had a reasonable expectation of privacy in relation to photographs taken of them while they were shopping and sitting at a café in Santa Monica, California, and which were published on the MailOnline website. The court observed that the approach for deciding whether there is a reasonable expectation of privacy is the same for children and adults, but in some cases a child has a reasonable expectation of privacy where an adult does not ([29–30]).

p. 450However, a 14-year-old boy who was involved in rioting in Derry, Northern Ireland complained that the publication of CCTV images of him in two newspapers breached his Article 8 rights (In the matter of an application by JR38 for Judicial Review (Northern Ireland) [2015] UKSC 42). The Supreme Court disagreed. The images were published at the request of the police to identify those involved and discourage sectarian violence. Three members of the court concluded that Article 8 was not engaged as he did not have a reasonable expectation of privacy; Lord Kerr and Lord Wilson thought Article 8 was engaged because of his age and the effect which publication of the photographs may have on him, but the interference was justified because publication struck a fair balance between the boy’s interests and the community’s interests in preventing and detecting crime.

The courts have recognised a reasonable expectation of privacy in areas of people’s lives such as personal and sexual relationships, and health or addiction issues, so in CC v AB [2006] EWHC 3083 (QB), it was recognised that a public figure engaging in an extramarital affair had a right to privacy. However, in Campbell v MGN, Lord Nicholls said that if a public figure chooses to present a false image and make untrue statements about their life, the press will normally be entitled to put the record straight ([24]). So if they had lied about not taking drugs, for example, they could no longer have a reasonable expectation that this aspect of their life should be private.

18.2.1.2 Balancing privacy and freedom of expression

Article 8 (the right to privacy) or Article 10 (freedom of expression and the right to publish): which one gives way? Articles 8 and 10 protect conflicting interests but are of equal value; there is no hierarchy of rights, so neither has automatic precedence. The ECtHR was balancing Article 10 against other interests long before the Human Rights Act came into force (as in Handyside v UK [1976] and Goodwin v UK [1996]), regarding it not as choosing between conflicting principles, but acknowledging that freedom of expression is subject to certain exceptions (Sunday Times v United Kingdom (1979) 2 EHRR 245 [65]).

Article 10 ECHR

(1)

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers …

(2)

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such … restrictions … as are prescribed by law and are necessary in a democratic society … for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Article 10(1) recognises the importance of an individual’s right to freedom of expression and the public’s right to receive information, but it is a qualified right. Both Article 8(2) and Article 10(2) recognise that interference may be justified to protect the rights of others (see Campbell [20] (Lord Nicholls) and [55] (Lord Hoffmann)). As Lord Hope put it, the right to privacy has to be balanced against the right of the media to impart information to the public, and the right of the media to impart information to the public has to be balanced against the respect to be given to private life (Campbell [105]).

p. 451Lord Woolf CJ in A v B set out balancing guidelines for the courts including:

The existence of a free press is desirable and any interference with it has to be justified. ([11(iv)])

A public figure is entitled to a private life but should accept that their actions will be more closely scrutinised by the media; if they have sought publicity, they have less ground to object to any intrusion. ([11(xii)])

The public interest According to Lord Bridge, ‘any restriction of the right to freedom of expression requires to be justified and … nothing less than an important competing public interest will be sufficient to justify it’ (R v Secretary of State for the Home Department, ex p Brind [1991] 1 AC 696, 748–749). One of the key questions for the courts in the balancing exercise is therefore whether publication is in the public interest: does the general public have a legitimate interest in knowing, as opposed to merely satisfying curiosity (see Mosley v UK (2011) ECHR 774 [114]).

In Von Hannover v Germany (2005) 40 EHRR 1, the ECtHR held that the decisive factor in balancing Articles 8 and 10 is the contribution that published photographs or articles make to a debate of general interest. However, in Von Hannover v Germany (No 2) (2012) 55 EHRR 15, the court expanded this to five criteria for balancing Article 8 and 10 rights:

The contribution made by photos or articles in the press to a debate of general interest in a democratic society.

How well known is the person concerned and what is the subject of the report? (Public figures may not be able to claim the same protection for their private life as ordinary individuals.)

Prior conduct of the person concerned.

Content, form, and consequences of the publication.

The circumstance in which the photos were taken. ([107–113])

The court in Weller made it clear that where children are involved, a child’s right is not ‘a trump card’ in the balancing exercise, but where a child’s interests would be adversely affected by publication, their best interests have primacy. This means that they must be given considerable weight, so very powerful Article 10 rights would be needed to outweigh a child’s Article 8 rights ([40]). In the case, the children’s Article 8 rights outweighed the defendant’s Article 10 right to publish.

The Supreme Court thought that there was no public interest (at least in a legal sense) in ‘kiss and tell’ stories about private sexual encounters which constitute the tort of invasion of privacy (see PJS v News Group Newspapers Ltd [2016] UKSC 26 [21–22, 32]). Reporting a public figure’s extramarital activities with a view to criticising them was ‘at the bottom end of the spectrum of importance’ and might not even fall within Article 10’s protection at all ([24] (Lord Mance)). However, in Ferdinand v MGN [2011] EWHC 2454 (QB), publication of a ‘kiss and tell’ story about a footballer’s affair was held to be in the public interest because it corrected a public image which he had presented and the information was relevant to his suitability to be the captain of the England football team.

Statute

Section 12 of the Human Rights Act 1998 applies where a court is considering whether to grant any relief which might affect the exercise of the right to freedom of expression.

p. 452Under section 12(4), the court must have particular regard to the importance of the right to freedom of expression. Where the proceedings relate to journalistic, literary, or artistic material, the court must have regard to (a) the extent to which the material has, or is about to, become available to the public or it is, or would be, in the public interest for the material to be published; (b) any relevant privacy code.

Sedley LJ interpreted this as meaning that the qualifications in Article 10(2)—the reputations and rights of others—are as relevant as the right of free expression in Article 10(1) (Douglas v Hello! [2000] EWCA Civ 353 [136]).

Note: Do not mistake section 12 for Article 10 of the ECHR. It is Article 10 that protects the right to freedom of expression, not section 12

18.2.1.3 Development of the law

The law in this area continues to evolve as the common law adapts itself to the needs of contemporary life, to borrow Lord Hoffmann’s phrase (Campbell [46]). In CTB v News Group Newspapers Ltd [2011] EWHC 1326 (QB), Eady J stressed that ‘the modern law of privacy is not concerned solely with information or “secrets”: it is also concerned importantly with intrusion’ [23]. This view was endorsed by Lord Neuberger in PJS Claims ([61–62]).

Thinking Point

How has the focus moved on from Douglas v Hello!?

Has the application of Article 8 produced a fully fledged cause of action in English law? In 2015, the Court of Appeal’s state-of-progress review in Google v Vidal-Hall [2015] EWCA Civ 311 concluded that misuse of private information should now be recognised as a tort. It was not creating a new cause of action but giving ‘the correct legal label to one that already exists’ ([21, 43, 51]; see [17–43] for a helpful review of authorities). Although the court in Google v Vidal-Hall cited authorities stating that there is no English domestic law tort of invasion of privacy, it is worth noting that in 2016, Lord Mance in the Supreme Court referred to the tort of invasion of privacy (see PJS [21–22, 32]). This journey was driven by Article 8.

Privacy and criminal investigations A significant case in 2018 highlighted the impact of the right to privacy on police investigations and how the media report them. In Richard v BBC [2018] EWHC 1837 (Ch), Sir Cliff Richard brought an action against the BBC and South Yorkshire Police claiming a breach of his right to privacy and his rights under the Data Protection Act 1998 after a police raid on his home was filmed by the BBC in 2014. The BBC broadcast details of the investigation and footage of the search, identifying Sir Cliff as a suspect in an alleged historical sexual assault of which he was then unaware; no charges were subsequently brought against him. Sir Cliff claimed that he had a legitimate expectation of privacy in relation to the investigation and search. Mann J carried out a balancing exercise between the claimant’s Article 8 rights and the BBC’s competing rights under Article 10, and held that as a general principle, a suspect has a reasonable expectation of privacy in relation to a police investigation ([248]); Sir Cliff had a legitimate expectation of privacy under Article 8 against the police in relation to the investigation and the search ([257]) and against the BBC ([261]), and his privacy rights were not outweighed by the BBC’s rights to freedom of expression. Although p. 453there was a significant public interest in police investigations into historical sex abuse, there was no public interest in identifying individuals in this case ([317]). Mann J also found that the sensationalist style of reporting, including use of a helicopter, increased the impact of the invasion of privacy.

The decision has raised concerns about press freedom and restricting media reporting about people under investigation by the police before they are charged. The BBC had argued that if the claim was successful it would undermine long-standing press freedom to report the truth about police investigations and it should be a matter for Parliament, not the courts, to undermine that freedom ([321–322]), but Mann J’s response was that if the position of the press is now different, it is because of the Human Rights Act. On the other side of the balance is the individual’s right to privacy, and protection of a suspect’s pre-charge anonymity.

Summary

Driven by the impetus of Article 8, case law has evolved rapidly to protect individuals’ privacy rights through misuse of private information. The test is:

1.

Establish that an individual has a reasonable expectation of privacy in this area of their life; this engages their Article 8 rights.

2.

Apply an intense focus to the balance between the individual’s right to privacy, and the other party’s right to freedom of expression, taking into account public interest.

18.3 Article 9: freedom of thought, conscience, and religion

Article 9

1.

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2.

Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

The central issue that arises under Article 9 is the tension between religious belief and discrimination either against, or by, believers, and the fact that social attitudes can change more quickly than deeply held religious beliefs. The ECtHR has stated that freedom of thought, conscience, p. 454and religion is one of the foundations of a democratic society (Eweida v UK [2013] ECHR 37 [79]). It encompasses:

private thought and conscience, including non-religious beliefs such as veganism (W v UK Application No 18187/91 (1993)) and pacifism (Arrowsmith v UK (1978) 3 EHRR 218);

the freedom to manifest (express) one’s religion either in private or in public (see Eweida [80]);

the freedom not to manifest one’s religion or belief (Isik v Turkey App no 21924/05 (ECtHR, 2 February 2010) [37]);

the freedom to have no religion.

Look at Article 9(2): only the individual’s right to manifest their religion or beliefs can be limited; thought and conscience, and freedom to change religion or belief, cannot. As Lord Nicholls observes, under Article 9, freedom to hold a belief is absolute, and freedom to manifest a belief is qualified (R (Williamson) v Secretary of State for Education and Employment [2005] UKHL 15, [2005] 2 AC 246, [15–19]).

Thinking Point

What do you think the reason is for this?

To be justified under Article 9(2), a limitation (or interference) must be prescribed by law and necessary in a democratic society to pursue one of the legitimate purposes in paragraph 2. It must be proportionate; there should be a fair balance struck between the rights and interests of different people in society (see R (Adath Yisroel Burial Society) v HM Senior Coroner for Inner North London [2018] EWHC 969 (Admin) [99, 107]). So, for example, in SAS v France [2014] ECHR 695, a French law banning the wearing of face veils in public places was upheld because France’s aim of ‘living together’ was linked to the legitimate aim of protecting the rights and freedoms of others; but in Adath Yisroel, refusing priority to expedited burials for religious reasons rendered the balance unfair.

The courts’ approach under Article 9 is:

Does an individual hold a genuine belief of perceived obligation, that is, that their religion requires an act (Williamson [22–23, 32])? If so, their rights are engaged.

Has there been interference with that right?

If so, is the interference justified?

Example

In R (Begum) v Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100, a teenage Muslim girl was not allowed by her school to wear a jilbab (a long coat) instead of the prescribed school uniform. She held a sincere religious belief that she was required to wear it, therefore Article 9(1) was engaged, but the majority of the House of Lords held that there was no interference with her right; she could have gone to another school where she would have been allowed to wear it (see [50] (Lord Hoffmann)). Lord Nicholls and Lady Hale held that it was an interference, but was justified.

p. 455Any adequate alternatives available to individuals to practise their religion will be taken into account when weighing proportionality (Eweida [83]).

In R (Harrison) v Secretary of State for Justice [2020] EWHC 2096 (Admin), the claimants were humanists who argued that English law did not recognise humanist weddings which was discriminatory and breached their rights under Article 14, taken together with Articles 8 and 9. The court held that the facts of the case fell within Article 9 but given the government’s on-going review of the law of marriage, a fair balance had been struck between the individual rights of the claimants and those of the broader community ([129]).

18.3.1 The right to manifest one’s religion

The ECtHR has observed that not every act ‘inspired, motivated or influenced by a belief’ is necessarily a manifestation of that belief and there needs to be ‘a sufficiently close and direct nexus between an act and the underlying belief’ which depends on the facts of each case (Eweida v UK [82]).

In Eweida, four practising Christians complained that each of their employers had violated their rights to manifest their religion under Article 9. They had already brought unsuccessful actions in the UK courts or employment tribunal for discrimination:

Nadia Eweida, a member of check-in staff at British Airways, began openly wearing a cross on a chain, contrary to BA’s uniform guide; as a result, she was suspended from work until BA changed its policy to allow visible religious symbols to be worn where authorised, but BA refused to compensate her for lost earnings. The ECtHR upheld Ms Eweida’s claim because BA’s refusal to allow her to remain in her post while visibly wearing a cross was an interference with her Article 9 right ([91]). The ECtHR considered whether the state had protected her right and decided that the Court of Appeal had given too much weight to BA’s protection of its corporate image and not enough to Ms Eweida’s right to manifest her religion with a discreet cross ([93–95]): see Eweida v British Airways plc [2010] EWCA Civ 80. BA’s amendment of its uniform policy also diminished the importance of the earlier ban (see [94]).

Shirley Chaplin, a nurse, refused on religious grounds to stop wearing a cross on a chain, contrary to the NHS Trust’s uniform policy, but she was unsuccessful before the ECtHR because the policy was based on health and safety grounds to reduce the risk of injury when handling patients in hospital. It had been applied to other workers of differing religions and Ms Chaplin had been offered alternative ways of wearing a cross which she had refused. The interference was therefore not disproportionate and her claim was dismissed ([98–100]).

18.3.2 Differences in treatment based on sexual orientation

The cases here involve the effect of manifestation of religious beliefs on the rights of others, raising issues of discrimination; under Article 14 ECHR, differences in treatment based on sexual orientation require particularly serious justification (Eweida [105]). The other two complainants in Eweida were:

Lillian Ladele, a registrar, who refused to officiate at civil partnerships because of her religious beliefs and lost her job;

Gary McFarlane, a Relate counsellor, who was dismissed for refusing to agree to give counselling to same sex couples on sexual issues.

p. 456The ECtHR decided that in Ms Ladele’s case, the local authority’s aim of promoting equal opportunities was legitimate to protect the rights of others ([105–106]). In Mr McFarlane’s case, the domestic courts’ refusal to uphold his complaints did not violate Article 9; his employer aimed to deliver a service without discrimination ([109–110]). In both cases, the proper balance had been struck between the right to manifest their religion and securing the rights of others, so the claimants were unsuccessful.

Article 9 can therefore conflict with equality law. The Equality Act (Sexual Orientation) Regulations 2007 (now replaced by the Equality Act 2010) prohibited discrimination on the ground of sexual orientation. In London Borough of Islington v Ladele [2009] EWCA Civ 1357, the Court of Appeal held that the Regulations did not entitle Ms Ladele to refuse to carry out civil partnership duties. Similarly, in Bull v Hall [2013] UKSC 73, Christian hotel owners refused a double room to a homosexual couple in a civil partnership on the ground that they only let double rooms to heterosexual married couples because of their religious belief in the sanctity of marriage between a man and a woman. The hotel owners argued that the requirement not to discriminate on grounds of sexual orientation in the 2007 Regulations was incompatible with Article 9. The Supreme Court held that the Regulations engaged Article 9 and did limit their right to manifest their religious belief, but it was necessary in a democratic society to protect the rights of others and ensure equal treatment, and the Regulations were a justified and proportionate protection of the rights of others. See also Black v Wilkinson [2013] EWCA Civ 820.

Competing rights and beliefs can also be seen in what is popularly known as the ‘gay cake case’.

Case Close-up: Lee v Asher Baking Company Ltd [2018] UKSC 49

Ashers Bakery in Belfast refused to decorate a cake with the logo ‘Support Gay Marriage’ because of the owners’ Christian beliefs (there was then no provision for same sex marriage in Northern Ireland; this has subsequently been introduced by the Marriage (Same-sex Couples) and Civil Partnership (Opposite-sex Couples) (Northern Ireland) Regulations 2019 made under section 8 Northern Ireland (Executive Formation etc) Act 2019). The McArthurs (the bakery owners) argued that their religious beliefs and political opinions about same sex marriage were being penalised. Upholding a decision that the company had discriminated on the grounds of sexual orientation, the Court of Appeal in Northern Ireland stated that a balance had to be struck between prohibiting discrimination on the grounds of sexual orientation in providing goods and services, and protecting religion, belief, and conscience. The legislation was not treating their religious belief or political opinion less favourably but the McArthurs were distinguishing unlawfully between those who may or may not receive their service.

However, the Supreme Court held that the appellants had objected to the message on the cake, not to Mr Lee’s sexual orientation, and anyone else promoting the same message would have been treated in the same way ([47]). Articles 9 and 10 protect an individual’s right not to be obliged to manifest beliefs they do not hold ([50, 52]). While the bakery could not refuse to provide a cake to Mr Lee because he was a gay man or because he supported gay marriage, the McArthurs could not be obliged to supply a cake iced with a message with which they profoundly disagreed, and they were entitled to refuse to do that [55].

p. 457This decision adds an additional element to be weighed and assessed by the courts: whether the objection was to a person’s sexual orientation or the message being promoted, and whether anyone promoting it would have been treated in the same way. In underscoring the right not to express an opinion which an individual does not hold, the judgment also places emphasis on the protection that Articles 9 and 10 can give where there are competing rights and interests.

The cases above raise the issue of how far secular law takes precedence over any right to manifest religious belief. Are religious beliefs sufficiently protected? Where manifestation takes the form of discrimination on the ground of sexual orientation, it is prohibited by the law and ‘very weighty’ reasons are required to justify it (Bull v Hall [51–54] (Lady Hale)). Laws LJ attempted to rationalise this, arguing that a law giving protection to a position held purely on religious grounds could not be justified because it would be irrational, preferring ‘the subjective over the objective’, and would be ‘divisive, capricious and arbitrary’, as not everyone shares the same religious beliefs; one religion could not have preference over another (McFarlane v Relate Avon Ltd [2010] EWCA Civ 880 [22–24]).

Summary

Human rights evolve at different speeds. The judiciary has expanded Articles 2 and 8 well beyond their original reach into rapidly growing areas of law, but the rights under Article 9 have been interpreted and applied more narrowly without the same creative drive because of their potential impact on the rights of others.

Questions

Self-test questions

1.

What obligations does Article 2 impose on a state?

2.

Summarise the key principles from the McCann case.

3.

What is the ‘investigative duty’ under Article 2?

4.

Does Article 2 apply to UK soldiers serving abroad?

5.

What rights are protected by Article 8?

6.

How can Article 8 be used by individuals challenging deportation?

7.

Briefly outline how the courts balance competing rights under Articles 8 and 10.

8.

What happens where Article 9 rights conflict with laws on equality?

Exam question

Freedom of speech ‘is a trump card which always wins’ (R v Central Television plc [1994] Fam 192, 203 (Hoffmann J)). Consider this statement in the light of Article 8 ECHR rights.

p. 458Further reading

Books
  • Costigan, R. and Stone, R. Civil Liberties and Human Rights (11th edn, Oxford: Oxford University Press 2017).
  • See chapters 6 and 7 on privacy and freedom of expression

  • Fenwick, H. Fenwick on Civil Liberties and Human Rights (5th edn, Abingdon: Routledge 2016).
  • See in particular chapter 10 on the right to privacy

    Journal articles
  • Barendt, E. ‘Problems with the “Reasonable Expectation of Privacy” Test’ (2016) 8(2) Journal of Media Law 129–137.
  • Analyses reasonable expectation of privacy in the JR38 and Weller cases

  • Chevalier-Watts, J. ‘Effective Investigations under Article 2 of the European Convention on Human Rights: Securing the Right to Life or an Onerous Burden on a State?’ (2010) 21(3) European Journal of International Law 701–721.
  • Interesting analysis of the duty to investigate

  • Leigh, I. and Hambler, A. ‘Religious Symbols, Conscience, and the Rights of Others’ (2014) 3(1) Oxford Journal of Law and Religion 2–24.
  • Analysis of the Eweida case

  • Morgan, J. ‘Privacy, Confidence and Horizontal Effect: “Hello” Trouble’ (2003) 62(2) CLJ 444.
  • Interesting to see how the law has developed since this post-Douglas analysis

  • Phillipson, G. ‘Transforming Breach of Confidence? Towards a Common Law Right of Privacy under the Human Rights Act’ (2003) 66 MLR 726.
  • A respected analysis, often judicially cited

  • Roberts, C.K. ‘Is There a Right to Be “Free from” Religion or Belief at Strasbourg?’ (2017) 19(1) Ecclesiastical Law Journal 35–41.
  • Evaluates whether there is a freedom from religion

    Other sources
  • Joint Committee on Privacy and Injunctions, Privacy and Injunctions, Session 2010–12, HL Paper 273, HC 1443.
  • Contains helpful discussion on the balance between freedom of expression and privacy.

    For extrajudicial discussion of cases and issues surrounding Article 9, see:

  • Lady Hale, ‘Freedom of Religion and Belief’, Annual Human Rights Lecture for the Law Society of Ireland, 13 June 2014 (www.supremecourt.uk/docs/speech-140613.pdf).
  • Lady Hale, ‘Religious Dress’, Sultan Azlan Shah Lecture, Oxford, 25 January 2018 (www.supremecourt.uk/docs/speech-180125.pdf).