The right to privacy in the UK remains uncertain, says Paul Dacam.

Paul Dacam is solicitor at Lovell White Durrant.

Last December the Broadcasting Complaints Commission (BCC) upheld David and Frederick Barclay's complaint concerning an unwarranted infringement of their privacy in the making and subsequent broadcasting of The Spin on BBC2 in October 1995.

While making the programme, BBC journalist John Sweeney landed on the Barclays' island of Brecqhou, in the Channel Isles, against their wishes.

The BCC initially declined to consider the complaint, which was made by the Barclays' prior to the programme's broadcast, claiming that under s.143 of the Broadcasting Act 1990 it had no power to do so. The Barclays sought judicial review of that decision.

The Barclays argued that s.143 was ambiguous and that it should be construed as giving protection for privacy in accordance with Article 8 of the European Convention on Human Rights and allow the commission to act on a complaint before a programme was actually broadcast.

One interesting point of the case concerned the admissibility of Hansard and the European Convention on Human Rights to aid statutory construction. The BCC argued that one should first refer to Hansard following the principles in Pepper v Hart (1993). Only if the ambiguity was still unresolved, was it necessary to consider the convention.

Mr Justice Sedley considered that, if both Hansard and the convention might assist, it was necessary to look at both. The respective roles of Hansard and the convention were complex and the court would not be assisted by a doctrinal ranking of one above the other.

Mr Justice Sedley held that s.143 was unambiguous and limited the BCC's power to consider complaints of infringement of privacy to programmes which had been broadcast.

It followed that in this field, as elsewhere in English law, there was no effective remedy before a national authority for a breach of privacy.

The judgment, therefore, did nothing to alter the present law relating to privacy.

Although a signatory, the UK has to date resisted incorporating the European Convention on Human Rights into domestic law. Labour, if elected to government, is pledged to change this.

Mr Justice Sedley doubted whether the argument would end in the domestic courts. He was right. The Barclays now propose to proceed with a complaint to Strasbourg.