Tag Archives: Human Rights

August 28, 2025 · 7:34 am

Data protection legislation – constitutional statute?

It is a principle of parliamentary sovereignty that Parliament’s law making powers are not subject to any restriction, and therefore Parliament cannot bind its successors (see e.g. Dicey: “Parliament has, under the English [sic] constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England [sic] as having a right to override or set aside the legislation of Parliament.”)

It follows that where two Acts of Parliament are inconsistent with each other, the courts will take the most recent one to be authoritative, through a doctrine of “implied repeal”.

However, in recent years, it has become accepted that certain statutes have, or have assumed, constitutional status, such that they are immune from implied repeal – examples being including: Magna Carta 1297, the Bill of Rights 1688, the Human Rights Act 1998 (notably, the European Communities Act 1972 was also felt to be one such, which opens up a whole new debate). Lord Justice Laws’ judgement [what a great set of words there] in Thoburn v Sunderland City Council [2002] EWHC 195 (Admin) is sometimes taken to be the definitive explanation of this.

What I’d missed, during the passage of the Data (Use and Access) Bill through Parliament, was the report of the Select Committee on the Constitution, which gave its opinion that the insertion of new section 183A into the Data Protection Act 2018 conferred constitutional statute status on that Act.

Section 183A provides that

A relevant enactment or rule of law which imposes a duty, or confers a power, to process personal data does not override a requirement under the main data protection legislation relating to the processing of personal data [except where] a relevant enactment [forms] part of the main data protection legislation [or] an enactment makes express provision to the contrary referring to this section or to the main data protection legislation (or a provision of that legislation)

(so, unless a further enactment is part of the data protection legislation, or expressly repeals a provision of the existing data protection legislation, the latter is immune from implied repeal).

What the Committee says is this

the courts have generally considered certain acts of Parliament to be of such constitutional significance that they should be treated as ‘constitutional statutes’ and protected from implied repeal. Clause 105 in effect seeks to bestow a status equivalent to that of a ‘constitutional statute’ on the Data Protection Act 2018. We draw this to the attention of the House.

I’ve not seen much discussion of this, and I don’t recall it coming up in the parliamentary debates. But it strikes me as interesting, at least.

The views in this post (and indeed most posts on blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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May 27, 2025 · 7:42 am

Liz Truss leadership election not amenable to JR

Was the leadership election in which Liz Truss was elected as leader of the Conservative Party (and as a result of which she was recommended to the Queen by the outgoing Boris Johnson, and appointed by the Queen as her Prime Minister) a decision amenable to judicial review?

Whether a person is a public authority for the purposes of the Freedom of Information Act 2000 is, in principle, a relatively straightforward issue: is it listed in Schedule 1 to FOIA?; or has it been designated as such by order under section 5?; or is it wholly owned by the public sector?

Whether a person is a public authority under section 6 of the Human Rights Act 1998, or whether a person is a public authority amenable to judicial review, are more complex questions.

It was the last of these that the Court of Appeal had primarily to consider in Tortoise Media Ltd, R (On the Application Of) v Conservative and Unionist Party [2025] EWCA Civ 673. Tortoise Media had written to the Party seeking certain information in relation to the leadership election process, and argued that the public effects of the leadership election meant that, in those circumstances, the Party was exercising a public function for the purposes of CPR 54.1(2). The follow-on argument was that the judgment of the ECtHR in Magyar Helsinki Bizottság v Hungary meant that the domestic courts should read down Article 10 of the ECHR (as incorporated in domestic law in the HRA) as imposing, in some cases, a positive obligation on a body to provide information to the media, who act as “watchdogs” in the public interest.

Perhaps unsurprisingly, though, the Court of Appeal did not accept that the effects and circumstances of the Party leadership election made the decision of the Party amenable to JR:

the nature of the act of electing a party leader…is at all times a private act. The fact that it has important, indirect consequences for the public does not transform a private act into a public one.

For that reason, the Court did not need to consider the Article 10/Magyar arguments (but on which, one feels – having regard to the submissions on behalf of the Duchy of Lancaster, as intervener, which argued that the Supreme Court’s decisions in Sugar and in Kennedy (which did not follow the reasoning in Magyar) bound all inferior courts – the claimants would have in any case lost).

It’s an interesting read, even if it was – to put it mildly – an ambitious case to bring.

The views in this post (and indeed most posts on blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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November 1, 2024 · 5:44 am

Dismissed FE teacher’s data protection, MOPI, HRA claims fail

[reposted from LinkedIn]

Claims in misuse of private information, data protection and for breach of the Human Rights Act, by a dismissed further education teacher against Tameside College and three employees are struck out/subject to summary judgment for the defendant.

The claimant was initially suspended after evidence came to light that he had been dismissed from previous roles. The College’s investigation involved the sending of reference requests to two previous employers, and was also informed by disclosures of Facebook and WhatsApp messages which revealed the teacher had, contrary to instruction, communicated with students on social media whilst suspended, and “sent a threatening message to a WhatsApp Group chat comprising members of staff”.

The deputy master found that in relation to the misuse of private information claims, although the claimant had a reasonable expectation of privacy in the social media messages, “those expectations were greatly outweighed by the need to investigate those messages for the purposes of the disciplinary process”. These were subject to summary judgment for the defendant.

The data protection and human rights claims against individual employees were bound to fail, as they were neither data controllers nor public authorities.

As to the data protection claim against the college, a previous determination by the ICO that the sending of the reference requests was not fair and transparent, because it was contrary to the claimant’s expectations, was wrong: it was “plain that it ought to have been well within the Claimant’s reasonable expectation that, in order to investigate whether he had failed to disclose the fact of his dismissal from those two institutions, each would be contacted and asked about it.”

The college’s processing was lawful under Article 6(1)(b) and (c) of the UK GDPR: “The processing was necessary for the purposes of the contract of employment between the [college] and the Claimant and for the performance of the [college’s] obligations to its other staff, and to safeguard and promote the welfare of its students.” The various safeguarding legal duties and obligations on the college established a clear legal basis for the processing.

Similarly, the human rights claims against the college, which included complaints of unlawful monitoring and surveillance, were bound to fail: “There is no real prospect of establishing a breach of Article 8 for the same reasons that there is no real prospect of establishing misuse of private information. The alleged breaches of Articles 10 and 11 appear to relate to the College’s instructions to the Claimant not to communicate with other staff except with permission. The instruction was plainly a reasonable one made for a legitimate purpose.”

Accordingly, the data protection and Human Rights Act claims were struck out.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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September 4, 2024 · 7:57 am

Gender critical beliefs not relevant in determining whether FOI request was vexatious

[reposted from LinkedIn]

The holding and expression of gender critical beliefs was not valid evidence for LNER to take into account in determining that an FOI request was vexatious.

Can a public authority take into account a requester’s public comments elsewhere, when considering whether a request is vexatious under s14 of the Freedom of Information Act 2000, in circumstances where the comments are expressions of a belief, the holding of which is a protected characteristic under the Equality Act 2010? The answer, says the Information Commissioner’s Office, in a well-argued decision notice, is “no” – however much the authority might disagree with the expressions.

The request was to London North East Railway (a company wholly owned by the Department for Transport), and therefore a public authority for the purposes of FOIA), and was for information about the process and costs of decorating a train in Pride colours, the processes for selecting train designs more generally and about plans for future designs.

LNER refused the request as vexatious, and justified this to the ICO on grounds including the content of social media posts by the requester

have demonstrated views that indicate a bias against transgender individuals, [that complying could lead to] harmful discourse and cause distress to our transgender employees and the people that the Pride train represents [and that the requester’s] focused questions on binary sex divisions and the specific targeting of a Pride-themed train…indicates a shift toward a disruptive agenda rather than an informational one.

In response, the requester

accepted that she had a binary view of sex, but…that this was a protected belief [citing Forstater v CGD]

LNER had therefore, in her view,

unlawfully discriminated against her because it had refused to provide information, that she would otherwise have been entitled to receive, due to her beliefs.

The ICO ruled that LNER had been entitled to take “a holistic view of the request” and nothing in principle had prevented it taking account of social media posts. However

the question of vexatiousness does not turn on what the complainant’s beliefs are, or are not. Nor whether she is, or is not, entitled to those beliefs

The question was “whether the request had a serious purpose and value” – here, it did – and whether that was outweighed by factors pointing towards vexatiousness. The ICO found that it was not:

the complainant’s motivation may well have a grounding in her beliefs, but the public authority has not demonstrated that she has made the request just to be disruptive, or just to target individual. Nor has it demonstrated that it would be subject to an unjustified burden if it were to respond to the present request

The right to information under FOIA is a species of the Article 10 ECHR right to receive and impart information. This is an important decision by the ICO on the extent of the right.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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July 30, 2024 · 7:19 am

Immunity from suit in data protection (and other) claims

[reposted from LinkedIn]

All too often, in my experience, public authorities might inadvertently disclose confidential information about one person to someone with whom that person is in dispute, or from whom that person is in danger. Typical examples are when a council discloses information about one resident to a neighbour, or when the police disclose information about a vulnerable person to their abusive partner.

This can also happen during the process of court proceedings.

There is a long-standing – and complex – common law concept of “immunity from suit”, which, in the very simplest and most general of terms, will prevent someone from being sued for something they say in court.

This judgment involves a fascinating, but headache-inducing, analysis of the different types of immunity from suit – witness immunity at court, advocate’s immunity at court, witness immunity before court, advocate’s immunity before court and legal proceedings immunity before court (which may apply to lawyers, police officers or administrative staff preparing a case for trial).

The background facts are grim: a woman fleeing from domestic violence was forced to flee from safe homes because twice her addresses were inadvertently disclosed (or at least indicated) to the perpetrator, against whom criminal proceedings were being brought – once by the police and once by the CPS.

The woman brought claims against both public authorities under the Human Rights Act 1998, the Data Protection Act 2018 and in misuse of private information. However, the defendants initially succeeded in striking the claims out/getting summary judgment (one part of the claim against the police was permitted to continue).

Mr Justice Richie upheld the appeal against the strike out/summary judgment, with rather a tour de force run through of the history and authorities on immunity (para 66 begins with the words “I start 439 years ago”).

In very short summary, he held that strike out/summary judgment had been inappropriate, because “the movement in the last 25 years in the appellate case law has been away from absolutism, towards careful consideration of whether the facts of each case actually do fit with the claimed ‘immunity’ by reference to whether the long-established justifications for the immunity apply” (at 106). In the examples here, it was at least arguable that immunity was being claimed not over evidence in the case, but “extraneous or peripheral or administrative matters”. The judge should have applied a balancing exercise to the facts to decide whether immunity applied: she had failed to do so, and had not been entitled to determine that there was no arguable claim

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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July 16, 2024 · 8:34 am

“Mom, we have discussed this”

A few years ago Gwyneth Paltrow’s daughter Apple took to social media to gently berate her mother for posting an image (not this one) which included her: “You may not post anything without my consent”. I’ve no idea whether Apple has other fine qualities, but I admired her approach here.

I was reminded of it by the – also admirable – approach by the Prime Minister and his wife to their two children’s privacy. Remarkably, it appears that their names and photographs have so far been kept from publication. It’s doubtful that will be able to continue forever (in any case, the children are at or coming to an age where they can take their own decisions) but I like the marked contrast with how many senior politicians co-opt their children into their campaigning platform.

One of the concerns of the legislator, when GDPR was being drafted, was children’s rights: recital 65 specifically addresses the situation of where a child has consented to publication of their data online, but later wants it removed.

Although Gwyneth Paltrow’s publishing of her child’s image would likely have been out of the material scope of GDPR under Article 2(2)(a) (and quite possibly out of its territorial scope) the thrust of recital 38 should apply generally: “Children merit specific protection with regard to their personal data, as they may be less aware of the risks, consequences and safeguards concerned and their rights in relation to the processing of personal data”.

[Image licensed under CC BY-NC 4.0, creator not stated. Image altered to obscure children’s faces]

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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June 12, 2024 · 6:14 pm

A violation of the presumption of innocence

This may not be a post directly related to information rights (although it does involve disclosure of information in response to a parliamentary question – which is a potential route to access to information which should never be underestimated). But I’m writing more because it’s on a topic of considerable public interest, and because the efforts and the campaigning of the applicants, and of Appeal, deserve support.

The Grand Chamber of the European Court of Human Rights (ECtHR) has held that the scheme in England and Wales for assessing whether people whose criminal convictions are subsequently overturned is compatible with the European Convention on Human Rights (the “Convention”).

Regardless of whether the ECtHR was correct or not, the underlying issue is, in my view, a national scandal and one that any incoming government should set right as a matter of priority.

Under Section 133(1ZA) of the Criminal Justice Act 1988 (as amended in 2018) the state must pay compensation where a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice. But a miscarriage of justice will only have occurred “if and only if the new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence”. This reverses what would be the normal burden of proof in criminal justice matters, and in effect requires the wrongfully convicted person to prove their innocence to gain compensation, despite the fact that their conviction has been overturned.

Figures given in response to a parliamentary question last year revealed that an extraordinary 93% of cases did not warrant compensation under the scheme. 

At the ECtHR, the applicants contended that the domestic scheme infringed Article 6(2) of the Convention, which provides that “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”. Although the ECtHR noted “the potentially devastating impact of a wrongful conviction” it also held that the UK was

free to decide how “miscarriage of justice” should be defined for these purposes, and to thereby draw a legitimate policy line as to who out of the wider class of people who had had their convictions quashed on appeal should be eligible for compensation…, so long as the policy line was not drawn in such a way that the refusal of compensation in and of itself imputed criminal guilt to an unsuccessful applicant

It was not, said the ECtHR, its role “to determine how States should translate into material terms the moral obligation they may owe to persons who have been wrongfully convicted”.

Although there was a strong dissenting opinion which would have held that the compensation scheme resulted in a violation of the presumption of innocence, it must now fall to the next Parliament to take forward the “moral obligation” and put right where a previous Parliament went wrong. This does not, and should not, need to wait for the outcome of the Malkinson Inquiry. That inquiry may well have things to find out, and things to say, in general, about miscarriages of justice but it is not in its remit to consider the compensation point: that can, and should, be resolved sooner.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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June 9, 2024 · 7:31 am

Drones and freedom of expression

Article 10 of the European Convention on Human Rights provides that everyone has the (qualified) right to freedom of expression, which includes the freedom to receive and impart information. And section 12(4) of the Human Rights Act 1998 requires a court: i) to have regard to the importance of freedom of expression, when considering whether to grant any relief which, if granted, might affect the exercise of the right to freedom of expression, and ii) where the proceedings relate to material which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to have regard to the extent to which the material has, or is about to, become available to the public, or the extent to which it is, or would be, in the public interest for the material to be published.

In a recent case in the High Court – sitting in Manchester – an application for an interim injunction was granted against one named and a number of unknown respondents preventing them from entering the site of the former St Joseph’s seminary in Up Holland, but also preventing the flying of drones over the site. There is already a large amount of footage taken previously by such drones on the various online video-sharing sites, and some of them are fascinating and informative. The future of the site is evidently a matter of significant local interest.

The concerns of the applicants for the injunction are compelling: there have been numerous incidents of trespass on the site, and it is in a very dangerous condition.

The only published judgment I have been able to find is on the website of the chambers of the barrister representing the applicant. It appears to be a transcript of an ex tempore judgment. The judge notes that section 76 of the Civil Aviation Act 1982 provides that

No action shall lie in respect of trespass or in respect of nuisance, by reason only of the flight of an aircraft over any property at a height above the ground which, having regard to wind, weather and all the circumstances of the case is reasonable

A piece on the website of the solicitors acting for the applicants indicates that the judge proceeded on the assumption that section 76 applied to drones and that the drone operator had complied with the requirements of the Air Navigation Order 2016. He then said that either i) section 76 did not apply, because the flight involved the taking of footage for its presumed purpose of encouraging trespass (and presumably therefore it was not “by reason of the flight only” for section 76 purposes), or, ii) if section 76 did apply, then the height of the drones could not be reasonable, because of the taking of the footage.

However, nowhere in the judgment is there any indication that the judge has had regard to the court’s duties under section 12 of the Human Rights Act. It strikes me that there are clear freedom of expression issues raised. A large number of people are interested in general in abandoned buildings, and there is an enormous amount of online attention to this subject, and, more locally, there is clearly notable interest in the fate of a grade 2 listed building: the drone footage must, surely, play a part in meeting this public interest.

So it strikes me that it was incumbent on the court to conduct the balancing exercise inherent in Article 10, which provides that the exercise of freedom of expression may be

subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial disorder or crime [and] for the protection of health…

The respondents in this case did not attend the hearing but the judge was satisfied that notice had been given to them (although the judgment does not explain how notice was given to the persons unknown). Perhaps, though, if they had attended, and been represented, their counsel might have drawn the court’s attention to its section 12 duty.

In a letter to The Times in 1987 (quoted here), Lord Scarman deprecated a decision of the House of Lords, and commented that

their Lordships have, with great respect, overlooked the more fundamental law providing the right of the public to access to information … and the public right of free speech…Old ingrained habits die hard. We are not yet able to abandon the traditional emphasis of our law on private rights …

Might he have found himself writing a similar letter today?

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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March 9, 2024 · 11:02 am

A sad procedural judgment

In 1973, Pat Campbell, a Catholic factory worker from Banbridge, Northern Ireland, was shot and killed in front of his wife and children, at their family home.

No one was ever convicted of Pat Campbell’s murder, but for many years it has been believed that the killer was senior Ulster Volunteer Force member Robin “The Jackal” Jackson. Jackson – suspected of being responsible for, but never convicted of, at least 50 killings during the Troubles – was also suspected of having links with British military intelligence agencies.

In 2022 Pat Campbell’s widow reached a settlement with the Police Service of Northern Ireland, or PSNI (successor to the Royal Ulster Constabulary, or RUC) of a civil claim for damages, in which she alleged negligence and misfeasance in public office. The BBC reported at the time that “a former RUC officer and two ex-military intelligence officers were set to give evidence about Jackson’s alleged role”.

In the same year as Pat Campbell was murdered, a British intelligence officer wrote a report which is understood to have proposed increasing the RUC’s special branch’s intelligence gathers capabilities.

In 2021 journalist Phil Miller took a case under the Freedom of Information Act 2000 (FOIA) to the Information Tribunal, seeking disclosure by the PSNI of the Morton Report. However, the Tribunal upheld the Information Commissioner’s decision that PSNI were entitled to withhold the report because of the FOIA absolute exemption in relation to information supplied to a public authority by the Security Service.

Mrs Campbell, herself, however, still sought to get hold of the Morton Report. I know this because of a sad procedural judgment from the Information Tribunal.

She is identified as the appellant in case EA/2023/0276, an appeal from ICO decision notice IC-173342-D4D8. But as the judgment explains, she has since died, and the Tribunal has accordingly struck out the proceedings, under rule 8(2) of the procedure Rules, for want of jurisdiction. This is because, although The Law Reform (Miscellaneous Provisions) Act 1934 permits a “cause of action” to proceed after a claimant has died, for the benefit of the deceased’s estate, the Tribunal held, applying the same approach the Upper Tribunal took in a previous case in relation to data protection rights, a FOIA appeal is not a “cause of action” (Letang v Cooper [1965] 1 QB 232 applied). Instead, “‘[the] procedure is no more than a statutory appeal route, a procedural mechanism, for challenging’, in this case, the issue of the decision notice by the Information Commissioner”.

It seems doubtful, in any case, that Mrs Campbell would have succeeded: the exemption at section 23 is effectively insuperable.

But, of course, the PSNI has discretion to disclose information. As the ICO’s decision notice notes, the PSNI previously decided to disclose a redacted version of the 1980 Walker Report on RUC Special Branch informant handling, after the Committee on Administration of Justice took another FOIA case to the Information Tribunal.

There is no reason to suggest the same would happen if another case involving a request for the Morton Report reached the Tribunal again, but someone might consider it worth trying.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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September 11, 2023 · 9:08 pm

When is a fundamental right no longer fundamental?

Answer – when Parliament approves legislation to remove it

Rather quietly, the government is introducing secondary legislation which will have the effect of removing the (admittedly odd) situation whereby the UK GDPR describes the right to protection of personal data as a fundamental right.

Currently, Article 1(2) of the UK GDPR says “This Regulation protects fundamental rights and freedoms of natural persons and in particular their right to the protection of personal data”. For the purposes of the EU GDPR this makes sense (and made sense when the UK was part of the EU) because the Charter of Fundamental Rights of the European Union (“the Charter”) identifies the right to protection of personal data as a free-standing right.

However, the draft Data Protection (Fundamental Rights and Freedoms) (Amendment) Regulations 2023 will amend Article 1(2) of the UK GDPR so that it will simply say “This Regulation contributes to the protection of individuals’ fundamental rights and freedoms.”

The explanatory memorandum to the draft regulations states that

There is no direct equivalent to the right to the protection of personal data in the UK law. However, the protection of personal data falls within the right to respect for private and family life under Article 8 of the European Convention of Human Rights, which is enshrined in UK law by the Human Rights Act 1998. Data protection rights are also protected by UK GDPR, the Data Protection Act 2018 and will continue to be protected by the Data Protection and Digital Information Bill in our domestic legislation.

None of this addresses the point that the EU specifically decided, in the Charter, to separate the right to protection of personal data from the right to respect for a private and family life. One reason being that sometimes personal data is not notably, or inherently, private, but might, for instance, be a matter of public record, or in the public domain, yet still merit protection.

The explanatory memorandum also says, quite understandably, that the UK GDPR has to be amended so as to ensure that

references to retained EU rights and freedoms which would become redundant at the end of 2023 are replaced with references to rights under the European Convention on Human Rights (ECHR) which has been enshrined in the UK’s domestic law under the Human Rights Act 1998

Nonetheless, it was interesting for a while that the UK had a fundamental right in its domestic legislation that was uncoupled from its source instrument – but that, it seems, will soon be gone.

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