Human rights lawby Stephen Grosz, Bindman & PartnersUK law and the Human Rights ActR v Secretary of State for Health, ex parte C (QBENF 1999/0500/C judgment of 21 February 2000) CA (Lord Woolf MR, Hale LJ, Lord Mustill) Amann v Switzerland, judgment of the European Court of Human Rights, 16 February 2000These two cases, decided within a few days of each other, illustrate how far our law will have to adapt to accommodate the Human Rights Act 1998 (HRA), which gives effect to the European Convention on Human Rights (ECHR).Ex parte C concerned the lawfulness of the Consultancy Service Index, a list of people about whom there are doubts as to their suitability to work with children.

Prospective employers were given limited information from the list.

There was no statutory basis for the index, which was maintained by the Department of Health and regulated only by a Departmental Circular.

The applicant claimed that maintenance of the list was ultra vires and that its operation was unreasonable, in particular because it contravened his right to a fair trial in the determination of a civil right under Article 6 of the ECHR.

The Court of Appeal rejected both arguments.

On the question of vires, the Court of Appeal accepted that at common law, the Crown, as a corporation possessing legal personality, has the same capacities and liberties as a natural person.

But neither the Crown nor a private individual might exercise these freedoms in such a way as to interfere in the rights of others without lawful authority.

Since no one had a right to a job, however, there was nothing unlawful in maintaining the index, because its maintenance infringed no private right of the applicant.

On the question of reasonableness, the Court of Appeal held that in the present state of the law, the operation of the list does not become unreasonable by falling foul of Article 6.

The Court went on to observe that, in any case, quite apart from the question whether a 'civil right' is involved, inclusion in the list is not determinative of any rights and obligations.

It refused to speculate on whether the outcome might be different once the HRA was in force.The Court of Appeal was right in concluding that the case raised no issue under Article 6 - if there was a right in issue at all, it was not a civil right and inclusion in the list did not determine it.In Amann, Mr Amann, an importer of depilatory appliances into Switzerland, was telephoned by a woman from the former Soviet embassy in Bern to order an appliance.

The call was intercepted by the Federal Public Prosecutor's Office, which then placed a card in its security index identifying Mr Amann as a contact with the Russian embassy and a businessman.

The card indicated that espionage had been established.

The European Court of Human Rights (ECtHR) noted that the storing by a public authority of data relating to an individual amounted to an interference with his right to respect for private life, regardless of the use to which the data were put.

Such interference breached Article 8 of the ECHR unless it was 'in accordance with the law', pursued one of the legitimate aims listed in Article 8(2) and was 'necessary in a democratic society' to achieve those aims.The ECtHR went on to hold that the Swiss legal provisions relied on to support the index did not contain specific and detailed provisions on the gathering, recording, storing or destruction of the information.

A measure interfering with a Convention right could not be 'in accordance with the law', unless its application was foreseeable, it laid down the conditions and procedures for interference, and it contained adequate safeguards against abuse.

Consequently, there was a violation of Article 8 because the interference was not 'in accordance with the law'.

The cases illustrate the differences of approach under UK law and the Convention.

First, the Court of Appeal approached the question of vires - whether the Department had power to maintain the index - in the same way as the Megarry V-C had approached the question of telephone-tapping in Malone v Metropolitan Police Commissioner [1979] 1 Ch 344: the keeping of the index was not made unlawful by any countervailing private right, and consequently there was nothing to stop the Crown from doing it.The ECtHR had disapproved that approach in Malone v United Kingdom (1984) 7 EHRR 14.

Under the ECHR, interference with a Convention right falls at the first hurdle if it does not have a sound basis in law which satisfies the requirements of foreseeability and accessibility, and which provides adequate safeguards for the individual.

In short, anything which is not permitted to the state by law is forbidden, rather than the other way around.Secondly, the Court of Appeal was not prepared to find that inclusion of C's name on the Consultancy Service Index interfered with any of his rights.

It was apparently not referred to Article 8 of the Convention, nor to cases like Amann or earlier similar decisions like Leander v Sweden (1987) 9 EHRR 433.

This decision will be disappointing to those who argue that common law is already capable of protecting individual privacy rights.

On the facts of this case, after 2 October 2000 the Department will have to comply with its duty under s6 of the HRA to act in accordance with Convention rights, including the right to respect for private life.

Maintenance of the index interferes with an individual's right to respect for private life, and will have to be put on a proper statutory basis by bringing into force the relevant provisions of the Protection of Children Act 1999.

However, even now it would have been possible for the court to develop the line of reasoning, articulated in cases like R v Secretary of State for the Home Department, ex parte Simms & O'Brien [1999] All ER 400, that a power to curtail fundamental rights is not to be implied without the use of express words or by necessary implication.Stephen Grosz is a partner at London-based Bindman & Partners.