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The Times
October 3 2000
Privacy | Housing | Health | Damages
Celebrities should beware, says Amber Melville-Brown, their private life is under an increasing threat of invasion
Privacy and the right to know
It is by the goodness of God in our country that we have those unspeakably precious things: freedom of speech, freedom of conscience and the prudence never to practise them. So wrote Mark Twain, Well, that was America in the late 19th century. In the Britain of the early 21st century, new legislation may ensure at least the first of those three.
The Human Rights Act 1998 (HRA) came into force yesterday, incorporating into UK law the European Convention on Human Rights. This enshrines two rights of particular interest to the general public and the media: the right to respect for private and family life and the right to freedom of expression.
American rights are codified in a Constitution, but in the UK they are not. However, although the HRA does not initiate these potentially conflicting rights - the UK courts have juggled them before - it does make the process of enforcing them quicker and easier. No longer a ten-year wait for a visit to Strasbourg: a trip to the Royal Courts of Justice in the Strand should suffice. And as case law develops it will become clearer which of these rights, if either, will more frequently weigh the heavier.
It has long been the view in the UK that freedom of speech in the US takes precedence over all else. The US burden of proof provides that libel claimants must prove that their reputation has been damaged: a public figure must also show malice on the part of the publisher.
Such provisions are considered vital to the continued protection of the public and their right to know. According to the late US Supreme Court judge William O. Douglas: "Restriction on free thought and free speech is the most dangerous of all subversions, the un-American act that could most easily defeat us."
But while UK defence lawyers had looked fondly across the Atlantic at the American love affair with freedom of speech, the implementation of the HRA will enable parties to make European submissions in the UK courts, arguing that commentary on matters of public interest, particularly involving politicians or those in the public eye, is necessary if the press is to remain the watchdog and the bloodhound of society, fulfilling its duty not only to report but also to investigate in the interests of the public.
And it seems that the tide may already be turning in favour of freedom of expression. Just six months ago, "nannygate" was the subject of much furore. Tony Blair's wife Cherie had obtained an injunction preventing the publication of extracts in The Mail on Sunday from a draft book by her former nanny, Rosalind Mark. The argument was that publication of the information would be in breach of confidence as Mark's employment contract forbade her from revealing what went on behind the closed doors of No 10.
However, although the action against Mark was stayed, it is understood that an injunction is being sought from Mark's mother and brother - both represented by David Price, who is defending the action - to prevent them from disseminating "confidential information" that they may have learnt from Mark. So this case may not have set a trend for more robust judgments in favour of claimants.
At the end of last month, in strikingly similar circumstances, two other high-profile claimants achieved a different result. The footballer David Beckham and his popstar wife Victoria tried to prevent the publication of various passages of an unauthorised biography by Andrew Morton. The information in the book to which they objected had, they said, been provided in breach of confidence by their former bodyguard and in breach of his agreement not to "guard and tell".
The result? The Beckhams settled the action, agreeing to a cut of only 200 out of the book's 60,000 words. It is likely that European Convention rights had at least some part to play in the outcome. Michael Tugendhat, QC, for the Beckhams, said that his clients accepted "what the law permits to be published". Geoffrey Robertson, QC, for Andrew Morton and the publishers O'Mara Press, said that the claimants had accepted what the law allows "in a society which holds fast to free speech principles".
This case should not give carte blanche to invasions into the privacy of any individual. But, where personalities thrust themselves into the limelight, it is at least arguable that they should be entitled to a lesser degree of privacy than those who hide from the glare of the media spotlight. Perhaps that is where the distinction will be drawn in future.
Only by watching the drama as it unfolds in future cases in
the Royal Courts of Justice will we see whether and how the balance between
freedom of expression and privacy is likely to change in the United Kingdom.
Nic Madge on how the Act will affect tenants and their landlords
Have squatters the right to housing?
Most people consider decent housing to be a fundamental human right. The quality of family life, good health, the ability of adults to work and of children to study all depend upon satisfactory housing. Article 25 of the Universal Declaration of Human Rights, which provides that everyone has a right to a standard of living adequate for the health and wellbeing of himself and his family, specifically refers to housing. Similarly Article 27 of the UN Convention on the Rights of the Child provides that states party to the Convention shall, in case of need, provide material assistance and support programmes with regard to housing. Although Britain is a signatory, these conventions are not enforceable in the courts.
Housing issues have not figured greatly in the deliberations of the European Court in Strasbourg. Article 8 of the European Convention on Human Rights does provide that everyone has the right to respect for his private and family life, his home and his correspondence. But as long ago as 1956 in a case involving Germany, the court stated that this does not mean that there is a right to housing. In a 1995 case where a Portuguese landlord was denied possession of his house by a law giving tenants security of tenure, the court said that Article 8 does not place states under an obligation to give landlords the right to recover possession of rented houses on request and in any circumstances. Indeed, the word "homeless" does not appear in any European Court judgment.
Most housing cases before the European Court have involved complaints by landlords alleging breaches of Article 1 of the First Protocol which provides that everyone is entitled to the peaceful enjoyment of their possessions and that no one shall be deprived of possessions except in the public interest. In the 1980s the Duke of Westminster complained that the Leasehold Reform Act 1967, which allows certain lessees to acquire the freehold of their homes, was a breach. In 1989 a Viennese landlord brought proceedings challenging an Austrian law which limited rent increases. In these cases the European Court found that laws giving rights to tenants did not contravene the Convention. The court recognises that housing is a central concern of social and economic policies and that laws controlling its use are common. The court will respect the legislature's judgment provided that any law interfering with the use of property strikes a fair balance between the demands of the general interest of the community and the need to protect an individual's fundamental rights.
Most successful complaints have been brought by landlords who have complained of breaches of Article 6, which guarantees a fair and public hearing within a reasonable time by an independent and impartial tribunal. Delays in the Italian court system have caused particular problems. In one case a magistrate set June 30, 1984, as the date for the eviction of a tenant. A bailiff then made 27 unsuccessful visits to evict the tenant. Even though the tenant stopped paying rent and the landlord was diabetic and 71 per cent disabled, the prefectorial committee failed to authorise police assistance for the bailiff. Possession was eventually recovered in January 1995. The court found a breach of Article 6.
What is the likely impact of the European Convention on British housing law? The cases already decided by the European Court give few pointers, not least because of the significant differences between British law and that of other member states. Landlords are unlikely to be successful in challenging the limited security of tenure and rent control that remain in the private rented sector. Similarly there is little doubt that the basic structure of security of tenure for tenants of social landlords is Convention-compliant. The discretionary grounds for possession allow a social landlord to recover possession only if a ground for possession- rent arrears or antisocial behaviour- is made out and the court considers it reasonable to make a possession order.
Courts should not make possession orders if arrears are low or breaches of tenancy agreements are unimportant. What though of mandatory Ground 8, which provides that a court must make a possession order against an assured tenant if there are eight weeks' arrears, even if the only reason for the arrears is delay in payment of housing benefit? Is that a breach of Article 8 and Article 1 of the First Protocol?
Introductory tenancies, which allow certain local authorities to recover possession within the first year of the tenancy without proving any ground for possession, are likely to be the subject of an early challenge. The only way for an introductory tenant to challenge a decision to bring proceedings is to apply for an internal council review or for judicial review. There is a strong argument that this breaches Articles 6 and 8 and Article 1 of the First Protocol. Many housing practitioners also consider that the failure of the county court rules to require landlords to give notice to tenants before applying for a warrant of possession is something that falls foul of the Convention.
The law relating to trespass may result in challenges by both squatters and dispossessed landowners. There is a strong argument that the procedure for obtaining interim possession orders under Criminal Justice and Public Order Act 1994 breaches Article 6. On the other hand, many members of the Chancery Bar are hoping to argue that the old law - whereby squatters can obtain possessory title by 12 years' adverse possession - breaches Article 1 of the First Protocol.
- The author is a district judge at West London County Court.
The Act forces the NHS to put clients before resources but it could be abused, says Gabrielle Walters
Patients' needs are protected
Little has been said about the impact of the Human Rights Act 1998 on the National Health Service. It is likely to be huge, with patients mounting challenges over the rationing of resources and the refusal of treatment.
In the past ten years the NHS has given precedence to economy and efficiency over clinical effectiveness. The result has often been to the detriment of patients; and resource issues are often likely to be closely linked to questions of clinical judgment.
In the controversial case of R v Cambridge DHA, ex p. B (1995), a child was refused funding to further her leukaemia treatment. The doctors felt it would be inappropriate to continue treating her as she had a very short life expectancy and as a result the health authority refused to pay for it. The case went to appeal and the authority was successful in claiming that they did not have to pay for the treatment.
The incentive for this apparent discretion in the allocation of monetary resources was provided by the National Health Service and Community Care Act 1990, which ensures that the NHS functions as an internal market. But can and should resource issues be excluded from decisions about the provision of services? If this case arose now with the Human Rights Act 1998 in force, it is possible that the authority would fail on its appeal.
The right to life under Article 2 is one of the absolute rights, which cannot be restricted or balanced against any public interest. The Act is already having an effect: care patterns are being reviewed to incorporate this fundamental freedom.
There are other changes: in the light of recent government policymaking, guidelines on the treatment of elderly people have been instigated after allegations last year that "do not resuscitate" was being written into their notes without consultation, so as to free beds. The Human Rights Act 1998 could remove many such limitations to the way resources are allocated and financially stretched health authorities and NHS trusts may have to forget their budget targets to ensure that they comply with the Act. So where is the money to come from to enable health authorities and trusts to meet their financial objectives as set in the NHS and Community Care Act 1990, while complying with the new Act?
A recent article in The Times (April 5, 2000) stated: "Soaring medical negligence claims totalling £3 billion threaten to wipe out the extra money given to the NHS by Gordon Brown last year." This money was promised for new hospital nurses and doctors but it could also have been used to implement and fund human rights-friendly initiatives within the NHS.
The courts and legal services claim to be bracing themselves for a torrent of legal action. The new Act will provide another vehicle alongside negligence, through which patients can make a claim against a public authority. Nevertheless, as Lord Woolf said in Daniels v Walker (Times Law Reports, May 17, 2000): "Judges should be robust in resisting inappropriate attempts to introduce arguments based on the Human Rights Act 1998." The quantity of successful claims under the Act remains unknown. In turn, earmarking money to cope with potential claims against NHS bodies is hard to estimate. Either few actions will succeed; or there could be financial disaster for the NHS.
The patients, of course, would suffer. If the NHS were crippled by legal claims, it is likely that some sort of payment would be required in return for care and treatment. Those on income support may not receive the same standard of care as those who could afford to pay. The result would be rationing of services for the poor and needy.
The new Act is to be welcomed as an attempt to balance an individual's rights with a large public authority. But use and abuse of the Act could destroy the many policies and procedures within the NHS which already respect the individual. Better to build on these and use them to resolve any disparities with the Act. If not, the Act could drastically reduce the availability of health services in the United Kingdom.
- The author is senior midwifery manager for Epsom and St Helier NHS Trust.
Robert Carnwath says that in many cases, Strasbourg makes no award other than the costs of the proceedings
No pot of gold at the end of the court case
Soldiers who were forced to leave the Armed Forces because of its policy on homosexuality complained to the Court of Human Rights at Strasbourg They received substantial awards by way of "just satisfaction" for loss of earnings and pension rights (up to £59,000 in one case) and for "emotional and psychological impact" (£19,000 each).
From yesterday it will be for the UK courts to give effect to the Convention rights and to grant remedies. To assist this task, the Law Commission (with the Scottish Law Commission) has carried out a detailed review of the Strasbourg case law under each of the articles of the Convention. The report, published today, contains references to more than 250 cases in which the Strasbourg court has considered the award of damages and discusses their implications for the UK courts.
Several important points emerge. The first is that the award of damages in Strasbourg is discretionary. In many cases, the European Court makes no award other than the costs of the proceedings. Account is also taken of other remedies, such as quashing a decision, ordering a retrial or granting injunctions. The conduct of the claimant may be important. An extreme example was the 1995 case in which three IRA terrorists were killed by the security forces in Gibraltar. Although the court found a breach of the "right to life" under the Convention, it made no award because of the criminal activities of the claimants.
Where damages are awarded, the object is to achieve "complete reparation" for the damage caused or loss suffered. But the Strasbourg court does not make punitive awards. Damages are usually awarded under three heads: pecuniary loss, non-pecuniary loss and costs and expenses. Awards of pecuniary loss may be very substantial. For example, in one Irish case, involving the revocation of a planning permission, the award for pecuniary loss amounted to more than £1 million. Claims often fail, however, on the ground that the claimant has not proved a sufficient connection between the loss and the breach. The court may find a breach of Article 6 (right to a fair hearing), for example, but make no award because it will not speculate whether the decision would have been any different if the procedure had been fair.
Awards for "non-pecuniary loss" cover a wide range of intangible injuries, such as pain and suffering, psychological harm, frustration, loss of reputation or loss of family relationships. Awards may be made to companies, for effects on business reputation, or management disruption. There is no consistent approach in fixing the amounts. Often the court will simply refuse an award because the harm is not sufficiently serious. In others, a relatively modest award will be made of a few hundred pounds.
Generally, the UK courts should find little difficulty in adapting their existing practices to the HRA. Many rights overlap with existing common law remedies. For example, the guarantee against unlawful detention (Article 5) covers the same ground as the tort of false imprisonment. Court decisions have established standard tariffs for levels of damages in typical cases. These are likely to be followed under the HRA. In other cases, analogies may be found in awards for nonpecuniary loss in personal injuries cases.
The main difficulties are likely to arise where the Strasbourg court gives damages in cases with no direct parallel in common law. For instance the Strasbourg court regularly awards damages for loss caused by unreasonable delay in legal or administrative proceedings affecting rights under the Convention. In one case a Frenchwoman, whose claim for compensation for expropriation of her land was delayed for more than seven years, was awarded more than £25,000 for the "state of uncertainty and anxiety" in which she was forced to live. The court has been particularly severe on delays causing damage to family relationships. Thus, in a series of cases in the late 1980s the court made awards to English parents of between £8,000 and £12,000 to reflect the distress caused by delays in adoption or access proceedings.
One problem will be how to deal with such claims where part of the delay is due to the courts themselves. The Strasbourg court holds the State responsible, whether the delay was caused by the courts themselves or by other public agencies involved. The HRA, by contrast, prohibits any award of damages for delay caused by judicial action or inaction. It seems therefore that an award can only be made for any part of the delay attributable to public agencies other than the courts (such as local authorities or prosecuting authorities).
Finally, the HRA emphasises that awards of damages are to be made only where "necessary" to afford just satisfaction. The domestic courts will be in a much stronger position than Strasbourg to correct abuses before they cause loss, by injunctions or other remedies. Damages are seen as the last resort. The Strasbourg experience will be useful but it leaves the UK courts reasonably free to develop their own practices and tariffs.
- The Hon Mr Justice Carnwath is chairman of the Law Commission.
- Damages under the Human Rights Act 1998: Joint Report of the Law Commission and the Scottish Law Commission; www.lawcom.gov.uk
- The Human Rights Act 1998, £5, The Stationery Office, PO Box 29, Norwich NR3 1GN; 0870-600 5522
