Will the tort of misuse of private information disappear if the Human Rights Act is repealed? – Hugh Tomlinson QC

11 05 2015

Human-Rights-Act1The Conservative Party Manifesto told voters that “The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights”. It seems likely that this legislation, piloted by new Justice Secretary Michael Gove, will form part of the Queen’s Speech. What impact will this have on the developing law of privacy?

There are two parts to this question: the impact on privacy rights against public authorities and the impact on such rights against private bodies, such as the media.  In this post I will deal only with the second  part. The question is, therefore, what impact will be repeal of the Human Rights Act 1998 (“the HRA”) have on claims for damages or injunctions for invasions of privacy?

The answer to this question can only be provisional because we have not yet seen the proposed legislation.  Nevertheless, it seems to me that, on the available material, it is capable of being given a clear answer: the repeal of the HRA will not lead to the disappearance of the tort of misuse of private information. The developing law of privacy will survive the scrapping of the HRA.

There are two reasons for this. The first arises from the nature of the tort of misuse of private information, the second from what we know of the details of the Conservative repeal proposals. I will deal with them in turn.

The first point arises from the relationship between the new tort of misuse of private information (recently recognised in Vidal-Hall v Google Inc [2015] EWCA Civ 311) and the HRA.

The law of privacy was, of course, developed by the Courts in response to the enactment of the the HRA. The tort of misuse of private information arose as a result of the recognition by the courts that

the values enshrined in Articles 8 and 10 [of the European Convention on Human Rights] are now part of the cause of action for breach of confidence” (Campbell v MGN [2004] 2 AC 457 [17]).

But this development was not the result of the implementation of any specific provision of the HRA.  It was, rather, a development in the common law, inspired by “Convention values”.  The right to privacy was not some kind of alien imposition, brought from Strasbourg by the HRA.  As Lord Hoffmann said in Campbell 

“the right to privacy is in a general sense one of the values, and sometimes the most important value, which underlies a number of more specific causes of action, both at common law and under various statutes” [43]

As Tugendhat J pointed out in the case of AKJ v Commissioner of Police for the Metropolis ([2013]  EWHC 32 (QB)) the right to privacy has long been recognised by the common law:

“Lord Judge CJ has on more than one occasion recalled the recognition given by the common law to the right to privacy of the home and correspondence. In Bright Lord Judge CJ cited from Lord Camden CJ’s judgment in Entick v Carrington  and from William Pitt, Earl of Chatham. See also in R v Saw [2009] 2 All ER 1138 [6]”

In other words, the new tort of misuse of private information was an organic development of the common law – inspired by the Convention but not required by the HRA. This tort is now part of the common law and the repeal of the HRA will not automatically abolish it.

The second point arises out of the Conservative plans for ““Protecting Human Rights in the UK” [pdf].  This slim document does not set out the fine detail of the proposals – and in particular does not give us the text of the proposed new “British Bill of Rights and Responsibilities”. We do not know whether, for example, this Bill will itself contain a “right to respect for private life”.

Nevertheless, the outline is seems relatively clear (see the Full Fact account here). The “key objectives” of the new Bill (apart from repeal of the HRA) are said to be:

  • Put the text of the Convention into primary legislation;
  • Clarify the Convention rights, to reflect the proper balance between rights and responsibilities;
  • Break the formal link between the British Courts and the European Court of Human Rights;
  • End the ability of the European Court of Human Rights to force the UK to change the law;
  • Prevent our laws from being effectively re-written through “interpretation”;
  • Limit the use of human rights laws to the most serious cases
  • Limit the reach of human rights cases to the UK
  • Amend the Ministerial Code to remove any ambiguity in the current rules about the duty of Ministers to follow the will of Parliament in the UK.

Although some of these points make little or no legal sense, the intention appears to be that the Convention should remain part of English law and should continue to be interpreted and applied by the English Courts.

Furthermore, although some of the proposals seem likely to bring the United Kingdom into direct conflict with the Council of Europe the stated intention is to “engage with the Council of Europe and seek recognition that our approach is a legitimate way of applying the Convention”.  In other words, it appears that the preferred course is for the United Kingdom to remain a party the Convention and therefore bound by it as a matter of international law.

It appears, therefore, that the “values” of the Convention in general – and of Articles 8 and 10 in particular – will remain legally relevant and influential.  In these circumstances, they will continue to “feed into” the common law. It seems likely that the Convention will continue influence the developing common law of privacy. There appears to be no reason why the case law of the Convention cannot continue to “provide the content” of the common law tort (see McKennitt v Ash [2008] QB 73 [11]).

So, privacy lawyers can, I think relax. The tort of misuse of private information will not disappear with the HRA. Unless the press can persuade the new Government to pass an “Abolition of Privacy Act” to bring an end to the new tort, it will continue in existence (and continue to develop). It seems likely that, whatever happens to the HRA, the new common law of privacy is here to stay.

Hugh Tomlinson QC is the joint author of the Law of Human Rights, 2nd Edn, 2009, and an editor of Inforrm


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