Since the proposal of a British Bill of Rights, many have questioned what purpose this bill of rights would play. At first glance, it would appear that there are two possible answers to this. Firstly, it is possible that the Bill may seek to strip the UK public of some of their human rights. The second possibility is that the Bill may merely be a symbolic change. This, in the sense that little will change, and its purpose is merely to appease members of the public who have criticised the European Court on Human Rights (ECtHR).
The second possibility is almost certainly true, when “The Conservatives’ Proposals for Changing Britain’s Human Rights Laws” document is considered. For example, the end of page three discusses the interpretation of the right to prohibition from torture and inhuman or degrading treatment or punishment. It argues that ‘for the Strasbourg Court, this entails banning whole life sentences even for the gravest crimes’. A simple search reveals that this is, in fact, inaccurate. The ECtHR merely stated that whole life sentence without review breach human rights. Therefore, a whole life sentence which is subject to regular reviews is likely to be deemed compatible with the European Convention on Human Rights.
This therefore suggests that the above statement is merely addressing public and media criticism. However, the British Bill of Rights seems to be much more than a mere ‘symbolic change’. This article will focus on its effect on the right to privacy.
The UK and the ECtHR approach on the right to privacy
The United Kingdom and the ECtHR often take different approaches in cases which consider whether a breach of the right to privacy has occurred. An example of this is in the case of MM v United Kingdom (Application No: 24029107). This case concerned the retention of the applicant’s caution on their system which, on the date of the trial, had remained on the system for about 12 years.
The ECtHR judges criticised the UK’s ‘generous approach’ towards the powers of the police to retain personal information. The ECtHR’s disapproval evidences the different approaches taken by the ECtHR and the UK in interpreting Article 8 of the European Convention of Human Rights (ECHR). While the UK puts more weight on being able to survey its citizens, the ECtHR often puts more weight on the right to privacy. However, ‘ECtHR approach’ to privacy has recently crept into the UK courts.
This can be seen in Lord Toulson’s dissenting judgment in the case of R (on the Application of Catt) v Commissioner of Police of the Metropolis . At paragraph 69, Toulson states rather passionately:
One might question why it really matters, if there is no risk of the police making inappropriate disclosure of the information to others. It matters because in modern society the state has very extensive powers of keeping records on its citizens. If a citizen’s activities are lawful, they should be free from the state keeping a record on them unless, and then only for as long as, such a record really needs to be kept in the public interest.
The UK Government appeared displeased at this, as in the same year, they released the Investigatory Powers Bill. This has often been referred to as the ‘Snooper’s Charter’. This Bill has received widespread criticism by opposition parties and academics, who suggest that this Bill will have a large effect on the right to privacy in the UK. If this Bill is in fact a response to the ‘ECtHR approach, then this appears likely.
British Bill of Rights – Furthering the effects of the Investigatory Powers Bill?
With this in mind, it must then be considered whether the British Bill of Rights will seek to place a further emphasis on the ability to survey UK citizens. If the Investigatory Powers Bill does, once in force, shift the approach towards surveying its citizens, then it would appear likely that the British Bill of Rights will do the same.
Many cases concerning Article 8 ECHR in the UK, including both cases previously mentioned, have been brought against the police to challenge the retention of information. This clearly affects the UK’s ability to survey its citizens. If it is found they have breached the ECHR, then as a public authority, they must change their practice accordingly. Alternatively, even if the police are found to have been acting within their powers, the years of legal action could become a nuisance.
The ability of the police to retain information is essential to be able to survey citizens. A British Bill of Rights would, therefore, be an opportunity for the UK Government to give the police further powers of data collection and retention. This would represent a shift moving away from the right to privacy, and towards the use of surveillance.
In conclusion, the combination of the Investigatory Powers Bill and the British Bill of Rights following the case of R (on the Application of Catt) suggests that the UK Government may use the British Bill of Rights as an opportunity to further their ability to survey UK citizens. This could have a large effect on the public’s right to privacy, due to the protection provided by the ECHR being removed.