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Scrapping the Human Rights Act: What about privacy and freedom of expression?

Justice minister's attack to destroy ability to challenge state

Comment According to most of the broadsheets, if there is a Conservative government after the next General Election, the European Court of Human Rights will no longer be able to overrule British courts.

Under plans unveiled today at the Conservative Conference, Justice Secretary Chris Grayling is expected to state that a future Conservative government will introduce laws ensuring that human rights cases are determined by Britain’s Supreme Court and not judges sitting in Strasbourg.

This is the Conservative response to an agonised cry: “Who will rid me of that troublesome law?” (and replace it with... well, we don’t know yet).

The dangers of this approach can be considered by reference to the DNA database and the case of Marper v UK, which provides a timely example of Mr. Grayling’s policy at work. This case was considered by the House of Lords, which judged that there was no human rights breach if the police indefinitely retained personal data that represented the DNA profile of a data subject – even when the data subject had not been found guilty of an offence.

The House of Lords judgment was overturned unanimously by the Grand Chamber of the European Court of Human Rights (ECHR) in S and Marper v UK; it was a 17-0 victory for Marper. This has resulted in the changes in UK law identified in the Protection of Freedoms Act 2012 and now the DNA database focuses on the guilty.

However, if Mr. Grayling’s proposed policy of preventing appeals to the ECHR were in place, then DNA on the innocent would still be stored on police databases. It is as simple as that.

I suspect that access to the ECHR would not be abolished; it’s just the requirement for the judgment to be implemented by the UK government that will go. For instance, Privacy International filed a legal challenge at the ECHR earlier this month seeking the release of secret documents detailing the spying agreements between the United States, United Kingdom, Canada, Australia, and New Zealand.

This case relates to the data sharing policies of GCHQ and whether they take due regard for the right to private life. In the wake of the Snowden revelations, many suspect that respecting private life is not high up on the agenda of these agencies.

Also, in September, the Bureau of Investigative Journalism has started an ECHR case in order to assess whether UK domestic law is incompatible with provisions in European law which give journalists the right to keep sources confidential from police and the national security agencies. This case arose because of the “Plebgate” affair where the Metropolitan Police obtained the phone records of the Sun newspaper's political editor without the consent or knowledge of the newspaper.

Both the above are important issues and both involve the question of whether or not the Regulation of Investigatory Powers Act provides sufficient protection for privacy as well as for freedom of expression.

Mr. Grayling’s policy would mean that he could waive the proverbial two fingers at any judgment even if the ECHR were to be unanimously against the UK (as with the 17-0 defeat for the UK in the case of S and Marper v UK).

So to conclude, here is a pub quiz question: please identify four countries that would never implement judicial rulings in support freedom of expression (Article 10) and respect for private life (Article 8).

Now add the UK to that list.

This story originally appeared at HAWKTALK, the blog of Amberhawk Training Ltd.

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