CHAPTER 5: LEGAL CONSTRAINTS
Assembly of the Council of Europe (made up of MPs from contracting states) adopted
the ECHR.
5.13.
The UK was a founder member of the Council of Europe. Since 1966, it has
acknowledged the right of individuals with a sufficient interest to petition the ECtHR
for a ruling that it has violated their fundamental rights. Such rulings are binding upon
the UK in international law,16 and may be enforced through the political mechanisms
of the Council of Europe’s Committee of Ministers.17
5.14.
Since the entry into force of the HRA 1998 in October 2000, individuals have been
entitled to enforce most of their ECHR rights in domestic courts and tribunals. Those
bodies are required to “take into account” any relevant decision of the ECtHR, and to
interpret UK laws in a manner consistent with the ECHR where it is possible to do
so.18 Higher courts may also declare primary legislation (or subordinate legislation
made in exercise of a power conferred by primary legislation) to be incompatible with
the ECHR. Consistently with the sovereignty of Parliament, legislation is not
invalidated by such a declaration. However, once appeal rights have been exhausted,
the UK Government has normally been prepared to repeal or to amend legislation that
has been declared incompatible by the courts.
5.15.
Material provisions of the ECHR include Article 6 (right to a fair trial) and Article 10
(freedom of expression). They bear, in particular, on the treatment of lawyer-client
communications and on the protection of journalists’ sources, and are considered in
those contexts below. But in other respects (and though the right to freedom of
expression is sometimes pleaded in tandem with the right to privacy) they are
generally of lesser significance than Article 8.
Article 8
5.16.
Article 8 of the ECHR is headed “Right to respect for private and family life”,
sometimes rendered, in shorthand, as the “right to privacy”.19 It provides as follows:
“1) Everyone has the right to respect for his private and family life, his home and
correspondence;
2)
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There shall be no interference by a public authority with the exercise of this
right except 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 wellbeing 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.”
ECHR, Article 46.
See Council of Europe, Supervision of the execution of judgments and decisions of the ECtHR, March
2015.
HRA 1998, ss2 and 3.
See, e.g., Liberty v United Kingdom (Application no. 58243/00, judgment of 1 October 2008), at para 43;
Kennedy v United Kingdom (Application no. 26839/05, judgment of 18 May 2010) at para 179. The
same convenient shorthand is used by the CJEU to describe the protections offered by Articles 7 and 8
of the EU Charter (see Digital Rights Ireland, paras 33-4); and cf. 2.1 above.
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