Information Sharing
The Legal Framework Human Rights
Contents
The European Convention on Human Rights
Application of the HRA to data sharing by public authorities
The European Convention on Human Rights
The European Convention on Human Rights ("the Convention") is a convention of the Council of Europe, which was adopted in 1950 and ratified by the United Kingdom in 1951. It was designed to give binding effect to the guarantee of various rights and freedoms in the United Nations Declaration on Human Rights, adopted in 1948. Article 8 of the Convention provides that:
"8.1 Everyone has the right to respect for his private and family life, his home and his 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 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".
The Convention thus enshrines a right to respect for individuals’ private lives and prescribes the circumstances in which it is legitimate for a public authority to interfere with the enjoyment of this right. The Convention provides a qualified right - interference with the enjoyment of the right is expressly foreseen in certain circumstances. It is recognised that public authorities in pursuit of legitimate aims will have just cause in a democratic society for intervening in individuals’ private spheres.
Since the adoption of the Convention, citizens of Council of Europe member states have had the right to present cases to the European Commission and Court of Human Rights ("commission" and "court"), established in Strasbourg. An international body of case law therefore exists which informs the extent to which the fundamental rights and freedoms enshrined in the Convention may find practical application. Applying general principles of international law, the Strasbourg court interprets the Convention in such a way as to give practical effect to its objects and purpose. Hence, in the case of Soering v UK the court noted:
"In interpreting the Convention regard must be had to its special character as a treaty for the collective enforcement of human rights and fundamental freedoms… Thus, the object and purpose of the Convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective."
As well as interpreting the Convention in such a way as to give practical effects to its objects and purpose, the court also recognises that the Convention is "a living instrument" that should be interpreted in a dynamic manner. This notion means that the court is not bound by precedent and instead recognises that the conditions prevailing at the time a case is considered may properly affect the outcome of a particular decision. Hence the approach of the Strasbourg court particularly when considering cases touched on by societal mores (e.g. corporal punishment, legitimacy of offspring and the rights of transsexuals) has not remained fixed but rather has adapted to reflect prevailing conditions. With regard to Article 8 rights, developments in information and communication technologies have presented evolving challenges for judicial interpretation.
Restrictions of Rights
Article 8(2) specifically envisages circumstances in which interference with the rights contained in Article 8(1) are permitted. However, such interference is subject to satisfaction of strict requirements to prevent abuse and compromise of personal rights. A number of principles have been adopted by the Strasbourg court when considering the extent of restrictions on the fundamental rights and freedoms set forth in the Convention.
The principle of legality: is relevant in this context since interference with the Article 8 right is expressly limited to that which is "in accordance with the law". The Strasbourg court has elucidated three rules applicable to satisfying this principle:
The legal basis for any restriction on Convention rights must be identified and established. In essence this is determined by reference to domestic law. Legislation, delegated legislation, the common law and even the rules of a professional body may suffice;
The law or rule must be accessible – i.e. persons likely to be affected must be able to find out what the law is that restricts their Convention right; and
The law or rule must be sufficiently certain that those likely to be affected must be able to understand its effect and thereby be able to order their conduct so as to avoid breaking the law.
The second key principle is the principle of proportionality. This principle is the mechanism by which the Strasbourg court seeks to determine whether a fair balance has been struck in the balance between the protection of the rights and freedoms of the individual and the interests of the community or society as a whole. In determining whether a restriction is proportionate the court will consider the following questions:
Have "relevant and sufficient reasons" supporting the restriction been advanced
Is there a less restrictive alternative
Is the decision-making process procedurally fair
Are there any safeguards against abuse
Does the restriction destroy the very essence of the Convention right in issue
The principle of proportionality has been held by the Strasbourg court as being particularly relevant in determining whether or not a restriction under Article 8(2) is "necessary in a democratic society". Thus the notion of necessity is not synonymous with "indispensability" but rather implies a "pressing social need".
In determining the extent to which contracting states may be under a positive obligation to promote "respect for private… life", the Strasbourg court has applied a wide "margin of appreciation". This doctrine recognises that different contracting states have different cultural and societal standards. In view of this, the Strasbourg court considers that the domestic authorities of those states are better placed than an international court to determine the propriety of particular measures.
Human Rights Act 1998
The Human Rights Act 1998 ("HRA") allows UK citizens to assert their rights under the Convention in UK courts and tribunals – although they may ultimately continue to take cases to Strasbourg. Furthermore, Section 3(1) of the HRA provides that "so far as possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with Convention rights". Section 6 provides that "it is unlawful for a public authority to act in a way which is incompatible with a Convention right". Accordingly, legislation is to be given effect and public authorities will be obliged to act in a way which is compatible with an individual’s right to respect for their private life. If individuals feel that public authorities have failed to do so they may challenge this through the Courts.
The HRA provides that "a court or tribunal in determining a decision which has arisen in connection with a Convention right must take into account the [Strasbourg jurisprudence]".
Application of the HRA to data sharing by public authorities
Whilst consideration should be given to the Convention as a whole, Article 8 is the most important in terms of data sharing. This article protects an individual’s right to privacy, family life, home and correspondence. Incorporated into UK law by the Human Rights Act, it has a fundamental impact on data sharing in this country.
In order to be compatible with Article 8 data sharing must be in accordance with the law, pursue a legitimate aim, and considered necessary in a democratic society.
Data sharing therefore requires a lawful basis (see the section on Administrative Law) The exercise of any power must also be proportionate and should seek to balance the demands of the general interest of the community and the protection of the individual’s right to privacy. Data sharing will only be proportionate if:
The objective is sufficiently important to justify infringing the right to privacy
The measures taken to meet the objective are rational and fair
The means used are no more than is necessary to accomplish the objective
The proportionality requirement is of particular relevance to the issue of bulk data sharing or data matching exercises, which potentially involve "collateral intrusion" into the right of innocent people to their privacy.
Proportionate safeguards are contained in the principles of the Data Protection Act. These include the duty of fairness; regard to the method by which data is obtained;the principles that data is adequate for its purpose, relevant and not excessive; that it is accurate and up to date; that it is not held longer than necessary; and that it is held securely.
Case Studies
One example of how human rights law affects the ability to exchange data is where this concerns information about victims. Applying Article 8, the victim will have a right to privacy, unless there is an overriding public interest in disclosing his or her information A decision will, therefore, need to be made as to whether there is an overriding need which would justify setting aside the wishes and expectations of the victims in passing on their information. The nature and importance of the right to privacy together with the extent of the interference must be weighed against the nature and importance of the public interest the state seeks to justify.
The police duty of confidentiality is also a key factor in this example. A balance needs to be struck between the police’s duty of confidentiality to victims, and their right to privacy, and the importance of other agencies being able to provide services to those victims. Any information subject to a duty of confidence cannot lawfully be disclosed unless it is in the public domain, the individual consents to the disclosure, there is statutory authority or some other specific overriding public interest justification requires disclosure.
To address human rights and common law duty of confidentiality issues, the victim must have a real opportunity to say if they do not want their details passed to say Victim Support, unless there is an overriding public interest in disclosure in a particular case.
Home Office guidance states that it is important that police officers should make it clear to victims that their details will normally be passed on to Victim Support unless the victim says they don’t want this to happen. The opportunity for the victim to opt out of having their details referred needs to be a genuine one, and there must be mechanisms in place to ensure their wishes are respected. The arrangements for processing also need to be fully compliant with the data protection principles.
For more information about disclosing victims details see Home Office Circular 44/2001 or Victims of Crime leaflet which is given by the police to victims of reported crime.
Generally, there is a balance to be struck in deciding how someone’s personal information is used. There might be arguments in the public interest for disclosing the information of victims or witnesses, but these would have to be balanced against any potential resulting prejudice to the interests of the individuals concerned. Victims would normally be expected to receive greater protection over disclosure than offenders. For example, it might be agreed that information be shared between local authorities and police forces for the purpose of seeking evictions. If the numbers of call-outs to addresses are used, some of these may be because of domestic violence. If the number of call-outs is used as a ground for eviction, the spouse might be made homeless along with the alleged abusing partner. This might then prevent others suffering domestic violence from calling the police in future for fear that eviction might be a consequence. In this case, therefore, it would be important to decide whether to provide details of all call-outs, or to withhold information on those related to domestic violence.
It is clear that the protection of personal data is a fundamental aspect of respect for private life. The impact of human rights law can be felt in the realms of data protection and administrative law, and in common law.
Last update: Friday, November 17, 2006