Private Life and the English Judges

Abstract

Developments in both Convention jurisprudence and the English courts since the passing of the Human Rights Act 1998 have significantly extended the reach of article 8 of the European Convention on Human Rights, and thus the powers of the judges who administer that broadly-defined provision. Those developments include confirmation that article 8 operates horizontally between private citizens as well as in public law; extension of article 8 to issues of personal autonomy as well as to more narrowly understood issues of privacy; increased emphasis on (judicially determined) proportionality and fair balance; and softening of the criteria for the engagement of article 8 in the first place. The English courts at the highest level have recognized that these developments require them to make decisions on issues of social or even moral priority, extending as far as critical scrutiny of criminal practice and sentencing. Recent cases in the House of Lords such as Countryside Alliance and R v G demonstrate a significant level of disagreement as to how those powers should be exercised, with the result that the outcome of future article 8 cases may depend on the judges’ personality and view of social priorities.