This will go over Article 8 Essay Plan and Layout with case law.
When doing a HR Scenario you will not use all of the essay plan, but rather the parts which are relevant to the scenario.
Article 8: Right to respect for family and private life.
INTRODUCTION
Article 8 is a qualified right; this means that the state is able to limit the right in prescribed set out
ways. These set out ways must be in accordance to law, meet a legitimate aim (such as national
security) be necessary in a democratic society (must find the correct balance between the individual
and society as seen in Brown v UK) and then the courts must also take into account the margin of
appreciation, to see if there is a wide consensus to protect the right or a narrow one not to protect
the right.
The article concerns areas of private life, family life, home and correspondence. In this scenario it is
concerning….
However, we know that this does not just include family, it can also extend to businesses, shown in
Vinci Construction v France.
POTENTIAL DEPREVATIONS
Private Life
When looking at private life article 8 covers many areas. This can be from their name, age, gender to
the more recent protection of sexual identity. We have been given some case law that will help us
define private life. In the case of S and Marper v UK it stated that it was ‘multiple aspects of
someone’s physical and social identity’. But Niemietz v Germany also shows us that it extends to the
‘right to establish and develop relationships with other human beings ’.
The act of Regulation of Investigatory Powers 2000 shows that it allows police surveillance to be
carried out on the public, but it must be authorised by the Home Secretary, but it then can only be
authorised for the legitimate aims of national security, preventing or detecting serious crime or in
the interests of economic well-being of the UK. If used the courts will ask if it was in accordance to
law, met a legitimate aim, necessary in a democratic society and if the MOA protected.
When handling personal data there are procedures and laws that must be followed. For example,
when handling medical/confidential records the institutes must respect the confidentiality of them
as shown in M S v Sweden. They must also ensure that when handling any personal data they are
following and complying with any relevant laws such as the DPA 1998 and the GDPR.
Children under 18 also have a private life and their parents do not have to be informed about
everything. This is the same for consent. The Gillick Competent shows that if people under the age of
eighteen show the maturity and understanding to consent to things they do not have to have the
consent of the parent/career, this was put into practice in the case of Axon v UK where the parent
wanted to be informed about the private life of their child and be told by the doctor about their
child.
The retention of photos can also be a violation of someone ’s article eight rights. In the case of Wood
v Commissioner for the Metropolis Police it showed that retaining and storing someone ’s photo is a
breach and was not proportionate. However, would it be proportional if the suspect was a terrorist
and they needed to profile them? The courts will need to find a balance between the individual
rights and the publics. (subjective basis?)
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