Article 8 of the European Convention on Human Rights provides as follows:
(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) 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 corresponding provision in the EU Charter, Article 7, is essentially the same as Article 8 ECHR except that “correspondence” has been changed to “communications” to take account of changing technology in this area. Although it does not set out the clawback provisions in the way that Article 8 ECHR does, the explanatory note to the text of Article 7 of the Charter makes it clear that the rights it lays out are intended to be subject to the limitations set out in Article 8(2) ECHR.
Article 8 is one of the most open-ended of the Convention rights, covering a growing number of issues and extending to protect a range of interests that do not fit into other Convention categories. This is partly because neither the Commission, when it was still in existence, nor the Court in its present incarnation, have attempted any comprehensive definition of Article 8 interests, adapting them to meet changing times.
Article 8 contains both negative and positive obligations. The state is under a negative obligation not to interfere with privacy rights, but in addition Strasbourg case law has also extended Article 8 to impose a positive duty to take measures to prevent private parties from interfering with these rights: (1) X (2) Y v the Netherlands (1985) 8 EHRR 235.
There are four express protected interests under Article 8:
(1) private life;
(2) home;
(3) family;
(4) correspondence.
Most actions have been decided under the right to respect for private life, although they may involve incidental claims to respect for home, family or correspondence. The requirement to provide “respect” for all four interests has reinforced the positive obligations on states, rather than simply requiring them to refrain from interfering with these interests. Thus it is that in recent years increasing attempts have been made to spread Article 8’s remit to social and economic claims on the welfare, like access to medical treatment and drugs; it is fair to say that the courts have, in general, resisted such claims by repeatedly holding that Article 8 is simply not engaged (that is, cannot be invoked) in relation to the provision of medical resources.
Nor does the State had a “positive obligation” under Article 8 to enable a sufferer from severe mental bipolar disorder to obtain, without a prescription, a substance enabling him to end his life without pain and without risk of failure: Haas v Switzerland (2011), an application which was made following the success of the Diane Pretty case under Article 2 (see our repost on this case).
A far more effective series of claims have been made under Article 8 to overcome immigration controls when children are involved in removal or deportation decisions; see our posts on children in detention centres, in deportation decisions and the effect of this particular aspect of Article 8 in immigration matters generally. The European Court of Justice has weighed in with its own application of Article 8 ECHR to stress the obligation on national authorities to take into account the right to respect for family life in immigration matters:see C-127/08 Metock v Minister for Justice, Equality and Law Reform [2008] ECHR I-6241.
Due to changing mores and advances in reproductive technology, the concept of “family” has changed dramatically since Article 8 was first drafted. Ties between family members need no longer be biological, and biological ties themselves can emerge from the laboratory . Same sex parents, surrogate versus birth mothers, carers rather than parents should all theoretically, lay claim to family bonds under Article 8. But the Strasbourg Court has shrunk from extending the scope of Article 8 to protecting the right of transsexuals to adopt (Frette v France (2004) 38 EHRR 21; although see EB v France, 22 January 2008, where the Grand Chamber ruled that Article 14 had been breached in conjunction with Article 8 when the government refused authorisation for adoption to the lesbian applicant ).
The privileging of marriage as part of the right to family life has been a source of great misery as human traffickers have sought to profit from the loophole in immigration controls by importing potential “wives” into the United Kingdom. Efforts by the government to eradicate the practice of forced marriage by refusing to grant visas to non-resident spouses under a certain age have been frustrated by the courts upholding Article 8 (see R (on the application of Quila and another) (FC) (Respondents) v Secretary of State for the Home Department [2011] UKSC 45 and our post on the matter ). In May 2016 the Grand Chamber the Grand Chamber found that the refusal to grant family reunion to a Ghanaian couple in Denmark violated Article 14 in conjunction with Article 8, overruling its previous position if there is any lack of obstacle to spouses living elsewhere, the state refusing entry is not in breach of Article 8: see Biao v Denmark [2016].
Like Articles 9, 10 and 11 Article 8 (2) contains specific exceptions to the right guaranteed in the first paragraph. These limitations may only be justified if they are “in accordance with the law” (Artciles 9,10 & 11 require measures to be “prescribed by law”) and, in all cases, “necessary in a democratic society”. The following analysis of these qualifications will apply equally to Articles 9 10 and 11 to follow.
In Accordance with the/Prescribed by law
This means three things:
(1) there must be a specific legal rule or regime which authorises the interference;
(2) the citizen must have adequate access to the law in question (The Sunday Times v United Kingdom (1979) 2 EHRR 245);
(3) the law must be formulated with sufficient precision to enable the citizen to foresee the circumstances in which the law would or might be applied (Malone v United Kingdom (1984)7 EHRR 14).
Necessary in a Democratic Society
Even if a measure has been taken in pursuit of one of the legitimate interests listed in the second paragraph of Articles 8, 9 10 or 11, the measure must be tested for “necessity.” The Court has held that the notion of necessity implies two things:
(1) that an interference corresponds to a pressing social need;
(2) that it is proportionate to the legitimate aim pursued.
The Doctrine of Proportionality
In order for a measure to be “necessary in a democratic society”, it must respond to a “pressing social need” (The Sunday Times v United Kingdom (1979) 2 EHRR 245). This involves the test of proportionality. If a measure has been adopted which infringes an individual’s Convention right in some way, it will not be considered disproportionate if it is restricted in its application and effect, and is duly attended by safeguards in national law so that the individual is not subject to arbitrary treatment (MS v Sweden (1997) 3 BHRC 248).
Margin of Appreciation
Depending on the aim pursued, the Court grants Signatory States a certain leeway in adopting the measures it considers most appropriate to pursue that aim. In the area of public morals, for example, State authorities have been considered to be in a better position than the Court itself to determine restrictions on the sale of pornography (Handyside v United Kingdom (1976) 1 EHRR 737) or the legal recognition of transsexuals (Rees v United Kingdom (1986) 9 EHRR 56).
It was been asserted by some commentators in the United Kingdom before incorporation of the Convention that the doctrine was simply an interpretative tool specific to the international supervision of human rights and had no place in domestic arrangements for the protection of human rights. Others argue that it is analogous to the doctrines of justiciability that limit domestic adjudication of policy matters or decisions relating to allocation of scarce public resources, and that the adoption of a margin of appreciation doctrine is merely a change in form rather than substance. Such an approach has received the support of the House of Lords, in the words of Lord Hope in R v Director of Public Prosecutions, ex parte (1) Sofiane Kebeline (2) Ferine Boukemiche (3) Sofiane Souidi [1999] 3 WLR 175 :
In this area difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention.
See however the analysis of a similar principle – “deference” – in R(N) v Home Secretary (March 2003) and Lord Sumption’s eloquent attack on it in his 1914 lecture to the Administrative Bar Association.