Convention law: a safety net
Human Rights Act 1998 and its incorporation of most of European Convention 1950 into English law has become a fundamental aspect of the English and Scottish constitutional framework; and it was often taken into account by judges long before its formal incorporation into British law in October 2000 (see eg Bingham LJ in W v Egdell (below)). However it must be recalled that it is mostly as a safety net that the 1998 Act and the Convention operate. That is part of its fundamental importance. The principle on which an effective welfare benefits system operates – as the post-War Beveridgeian system was intended to operate – is, as much as anything, as a safety net for those not provided for otherwise financially. So it is with the English statute and common law: that where these falter the Convention may plug the gap.
Toulson LJ (now Lord Toulson) explained the other side of this coin in R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court  EWCA Civ 420,  QB 618:
 I base my decision on the common law principle of open justice. In reaching it I am fortified by the common theme of the judgments in other common law countries to which I have referred. Collectively they are strong persuasive authority. The courts are used to citation of Strasbourg decisions in abundance, but citation of decisions of senior courts in other common law jurisdictions is now less common. I regret the imbalance. The development of the common law did not come to an end on the passing of the Human Rights Act. It is in vigorous health and flourishing in many parts of the world which share a common legal tradition. This case provides a good example of the benefit which can be gained from knowledge of the development of the common law elsewhere.
Toulson LJ did not say this to devalue the 1998 Act and Convention; but sought only to point out that many important decisions can be made by British courts by reference only to statute and common law, and without reference to European jurisprudence.
Speaking – as I do – as a family lawyer (I dare not call myself a ‘constitutional lawyer’ as this series demands) I believe the Human Rights Act 1998 has done three things, all of which may survive within the common law and judicial thinking for many decades; though the points made here may apply in many – or most – areas of law:
- It has sharpened up our understanding of legal concepts we had always used, but which the Convention made us rethink
- It has made judges and lawyers balance the principles applicable and summarised in the Articles; known in Convention terms as ‘proportionality’
- It has made us all, perhaps family lawyers especially, re-think aspects of the laws of confidentiality and privacy
Understanding legal concepts
Most English lawyers, including family lawyers, would have assumed that anyone who came before an English court in the twentieth century received a fair trial; and most family lawyers in the 1990s would have accounted the husband in Mubarak v Mubarak  1 FLR 698 as one of the more extreme rogues to have been dealt with in the family courts. As luck would have it (together with Mr Mubarak’s ability to fund an appeal, one might say) it fell to his case for the Court of Appeal to review the fairness of the rules made under Debtors Act 1869 s 5 (still in operation in the civil courts) for committal to prison for a debt ordered to be paid by a civil court. In 2000 (when Mubarak was heard) Civil Procedure Rules 1998 had recently been amended to apply, in civil (but not family) proceedings, the rule that a defendant should not be required to provide evidence against himself. The then family proceedings rules had not been so amended. As the 1998 Act was coming into force and Art 6(3) of the Convention coming to be applied to English court proceedings, the state of English family proceedings rules lead Brooke LJ to comment as follows:
 The Human Rights Act 1998 has now been in force for just over 2 months, and it is already clear that the introduction of a code setting out modern international standards of fairness is doing work of considerable value in shining light into some of the dustier corners of our law. The experience of this case shows, at any rate to my satisfaction, that corners do not get much dustier than those inhabited by s 5 of the Debtors Act 1869 and the prescribed procedures under that Act.
Family proceedings rules were amended – in the form now to be found in Family Procedure Rules 2010 Part 33 – to reverse the burden of proof as fairness required and which a review under convention terms had prompted.
Proportionality: ‘ultimate balancing’
Many judicial decisions – regardless of operation of European Convention 1950 principles – involve, and have always involved, the judicial balancing of conflicting principles. Convention principles do not change that. It has, however, helped to bring the exercise into sharper focus.
Lord Steyn explained the operation of the Convention balancing test in a criminal and family case (Re S (Identification: Restrictions on Publication)  UKHL 47,  2 AC 593 at ): should the right of the press to publicise information about mother’s trial override the right of her child to privacy:
 The interplay between articles 8 and 10 has been illuminated by the opinions in the House of Lords in Campbell v MGN Ltd  2 WLR 1232. For present purposes the decision of the House on the facts of Campbell and the differences between the majority and the minority are not material. What does, however, emerge clearly from the opinions are four propositions. First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test.
These principles in relation to proportionality balance can be seen being developed in ZH (Tanzania) v Secretary of State for the Home Department  UKSC 4,  2 AC 166
and H(H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening)  UKSC 25,  1 AC 338. In Lifely v Lifely  EWCA Civ 904 (a chancery proceedings appeal between two brothers, who were at issue over what had been agreed between them and their father during his life) Ward LJ said of the balance to be struck between privacy and a fair trial to be applied after Re S:
 The Campbell case also involved the balancing of Miss Campbell’s right to respect for her private life under Article 8 and the right of freedom of expression that is enshrined in Article 10 of the Convention. Lord Hope spoke in paragraph 85 of his speech of the need for the court “to carry out a balancing operation, weighing the public interest in maintaining confidence against a countervailing public interest favouring disclosure.” For Article 10 in that case, read Article 6 in this [Lifely] case.
 In Re S (A Child) (Identification: Restrictions on Publication) [(above)] Lord Steyn spoke in paragraph 17 of the “ultimate balancing test” [as above]:…
 In my judgment the result of undertaking this balancing exercise is plain. Here there was no trespass or burglary. The diary was left on Andrew’s property and had been there for many years. Though he can, perhaps, be criticised for reading a private diary, his conduct,… was not so outrageous. If Nicholas had disclosed the existence of his diary, as strictly he ought to have done, then this information would have emerged at the trial. It was not privileged and no claim to confidentiality could then have prevailed.
Confidentiality and privacy
Ten years before Human Rights Act 1998 (in November 1989) Bingham LJ concluded his judgment in W v Egdell  Ch 359,  2 WLR 471 (an important case in the context of when confidentiality and advice privilege may be breached) by stressing the significance of European Convention 1950:
No reference was made in argument before us (nor, so far as I know, before the judge J to the European Convention of Human Rights, but I believe this decision to be in accordance with it. I would accept that Article 8(1) of the Convention may protect an individual against the disclosure of information protected by the duty of professional secrecy. But Article 8(2) envisages that circumstances may arise in which a public authority may legitimately interfere with exercise of that right in accordance with the law and where necessary in a democratic society in the interests of public safety or the prevention of crime. Here there was no interference by a public authority. Dr. Egdell did, as I conclude, act in accordance with the law. And his conduct was in my judgment necessary in the interests of public safety and the prevention of crime.
This case, alongside the Guardian News and Media and Campbell cases (cited here) are concerned with aspects of confidentiality and privilege and with privacy. The application of Art 8 (right to respect for family life) is an area where it can be said that the common law has emphatically been developed since the Convention was more closely applied to English law (as explained in Campbell; and see Confidentiality (3rd Ed) Toulson and Phipps (2012, Sweet & Maxwell, especially 7-017 etseq).
That said, rules in relation to privilege have been known to and developed by the common law at least since the sixteenth century (as explained in R v Derby Magistrates’ Court exp B  UKHL 18,  1 AC 487,  1 FLR 513). This will not go if Human Rights Act 1998 is repealed.
Conclusion: the lessons of European Convention 1950
Privacy and the law of confidentiality is an important aspect of family law and needs to be tended carefully. This and so much else would be much better developed within the common law but under the oversight of European Convention 1950 principles. The family law will always want to recall the lessons of Mubarak and the balancing test in Re S. These lessons will remain; but how many other lessons, as yet unlearned, will be lost if the prominence of the Convention is lost to English and Scottish law? How many of Brooke LJ ‘dusty corners’ will remain unswept if an overarching jurisprudence, such as that provided by the Convention is not regularly applied? To close the legal mind or any body of law to any legal development is a retrograde step. Like John Donne’s continent: any that is washed away ‘diminishes’ the whole.