Identity, State and Article 8

This is a post about the interplay between a person’s identity, Article 8 ECHR and the role of the state in a person’s identity.

Article 8 is a person’s right to private and family life. It is the most elusive, and most expansive, of the Articles. It reads as follows

Article 8 – Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

In other words, everyone has the right, although the state may interfere with it in certain circumstances if it is justified. Obvious ways where the state may interfere would be in reading text messages from a suspect in a crime, of refusing entry to the UK of a non-British spouse where the visa requirements are not met, or, currently topical, stopping people from leaving their homes without a reasonable excuse. These are all interferences with our private and family lives, but the state has a justifiable reason for doing so.

What IS this right, though? How do you define a person’s “private life?” Many have tried it, but a comprehensive definition slides through the fingers of the deftest jurist. It has been loosely grouped into three subcategories by the Council of Europe’s guide to include (i) a person’s physical, psychological or moral integrity, (ii) her privacy and (iii) her identity and autonomy. 

We know from case law that it is not restricted to a person’s “inner circle.” A person’s private life can rarely be effective within the confines of their own head or their own home; human beings are, as the House of Lords said in Huang v SSHD [2007] UKHL 11, “social animals.” It is not enough that a person has an ethnic identity or a social identity if they are not allowed to express that. Article 8 “secures to individuals a sphere within which they can freely pursue the development and fulfilment of their personality.”

Identities which are protected by Article 8 include national identity, ethnic identity, religious identity, gender identity, parental identity, and others.

The state, however, treads a fine line between lawful respect for a person’s identity and unlawful intrusion on privacy. It is obvious that where the state keeps records of minority identities, that is capable of being used to no good purpose. Hitler’s Germany is the obvious example, but in modern day Kyrgyzstan, to take another, it is the nationalists who campaign to keep ethnic identity on ID cards, not the minorities who know that it would be an invitation to discrimination. Here in the UK, the requirement that defendants state their nationality as part of their identity is reported to create ‘racialised courtrooms’ potentially breaching the UK’s obligations under Article 8 (and 6).

The protection offered by Article 8 to recognise and respect a person’s identity is vital. As state technology, databases and surveillance expand though, we must ensure that privacy is not trampled under the pretext of protecting identity.

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