Balancing Conflicting Interests Between Human Rights

Balancing human rights can be complex as there are so many to balance against one another. In exams, you should try to identify a small number of human rights and use legal cases to demonstrate in detail how they have been dealt with in the courts.

Firstly, let’s look at the right to privacy. In 2016 the Investigatory Powers Act was given royal assent. The Act allows for the collection of a huge swathe of information to be gathered and stored. Much of this information would be considered to be private. Information gathered could include internet search history, financial information and records of phone calls. Many prominent lawyers have argued that mass collection of such data should be considered illegal, on the grounds that for most people, this information is not collected in the interests of justice. One of the justifications given for the implementation of the Investigatory Powers Act is that it is in the interests of national security, as it helps to identify potential terrorists and other criminals. However, most people are not terrorists or criminals. Therefore, the collection and storage of this data would in some people’s minds, constitute unwarranted state surveillance.

On the one hand, terrorists would be more easily prosecuted if there was more data available to the authorities. However, on the other hand, the mass collection of the data not only creates a needle-in-a-haystack approach, which is inefficient and possibly ineffective. It also opens the doors to the abuse of this data to coerce innocent people into doing the bidding of the State, possibly against their will. Not only that, but the IPA allows police officers to approve their own access, whereas these previously had to be approved by the Home Secretary and a judge. The potential for abuse is therefore too high in many legal experts’ opinions, based upon powers that had been abused in the past by police officers when operating without the consent of a court.

Now let’s turn to the right to a private and family life. This right is often cited as important in determining deportation cases for foreign-born criminals. Often, defendants in such cases have a spouse and children who are resident in the UK and may even have been born in the UK too. Since they have full citizenship, deportation would not be legal. But to deport the father or mother due to their criminal activities would separate the children and spouse from a close family member. In cases such as these, it may be preferable to imprison the offender. However, this may depart from precedents where similar criminals were deported for similar offences. This flies in the face of the right to equal treatment under the law. Deportation can also raise another issue, that of the safety of the offender. In the case of Abu Qatada, the Home Secretary wished to deport Qatada to Jordan in order to face trial there. However, there was sufficient evidence to suggest that once in Jordan, Qatada may possibly face torture. Due to this, it took many months for the Jordanians to agree to a fair trial without the use of torture as a method of extracting evidence. Other cases of less-high-profile offenders, however, have resulted in the deportation of offenders, who it is proven have since been subject to torture, which denies another of their fundamental human rights.

The right to peaceful assembly is often brought into question when mass demonstrations and political marches take place. Here, it is important for the State to balance people’s right to free assembly with the possible danger that violence could break out, or that due to the size of crowds, people could inadvertently get injured. In 2009 and 2010 a number of largely peaceful demonstrations took place over issues such as tuition fees. During these demonstrations, the police were seen to use a method of crown control known as ‘kettling’. This involved rounding up and cordoning off small sections of protesters into a confined area, where they faced heavy-handed methods of crowd control by police armed with batons, shields and sometimes mounted cavalry units. During these periods of kettling, often lasting six to seven hours, protesters were denied the right to free movement and were often subjected to violence themselves, some sustaining serious and even fatal injuries. This was the case with Ian Tomlinson in 2009, where he was hit over the head by a police baton at a newspaper stand during the G20 protests. The use of kettling as a way to maintain the “safety” of the overall demonstrations was seen by many to be in breach of a variety of human rights, including the right to peaceful assembly. However, some arguing in favour of the police tactics argued that it should be available to the police in extreme circumstances where other options are unavailable.

Another area where human rights must be balanced is in cases involving extra-marital relationships of high profile celebrities. Here, the right to freedom of expression of the press has come into conflict with the celebrities’ right to privacy. Both A V B (2001) and a case involving Lord Coe failed in their attempt to prevent newspapers from publishing details of their affairs. In both cases, the courts decided that the media’s freedom of expression should take preference over the right to privacy and that the courts should not act as censors. However, some judges, such as Lord Hope in Naomi Campbell’s case against the Mirror Group Newspapers, have expressed that there should be a right to privacy to some degree, although it hasn’t been fully developed what this law would entail.

In what year did the Investigatory Powers Act allow for the collection of a huge swathe of information to be gathered and stored?

2016

True or false, the Investigatory Powers Act is open to potential abuse by the police?

True

What did Abu Qatada potentially face if he was deported to Jordan?

Torture

The use of kettling can be seen to be in breach of the right to peaceful _____?

Assembly

True or false: regarding Naomi Campbell, the media's freedom of expression took preference over her right to privacy?

True