“Don’t ever take a fence down until you know the reason why it was put up” – so goes the saying ascribed to G.K. Chesterton. For many years, Chesterton’s Fence was cited to discuss the loss of religion in the post-modern West. In 2025, Chesterton’s Fence is the ECHR, a document emblematic of the long-decaying post-War consensus, which now seems to be in its final death throes.
Article 8 of the ECHR governs the Right to Privacy and Family Life, Home, and Correspondence. It has been in the spotlight this year over immigration, and the blocking of deportations. However, those looking to take back control in this area should be aware that regaining powers in one domain risks eroding them in another. Article 8 also regulates data privacy, as we found out in Big Brother Watch and others v the United Kingdom App nos. 58170/13, 62322/12, and 24960/15 (ECtHR, 25 May 2021). In short: if the state seeks to deploy its powers of surveillance against you, Article 8 ECHR is the law you cite.
G.K. Chesterton writes in his 1929 book, The Thing:
In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, “I don’t see the use of this; let us clear it away.” To which the more intelligent type of reformer will do well to answer: “If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.
In Big Brother Watch the ECHR ruled that the UK’s mass surveillance regime under the Regulation of Investigatory Powers Act (RIPA) lacked the necessary safeguards to be proportionate and necessary in a democratic society. The post-War era drew on experts and committees to provide the independent oversight and safeguards stipulated by Article 8. This was probably the best method available at the time, but history revealed it to be flawed. A future system will no doubt draw on joint oversight by human- and artificial intelligence to determine the selectors and search criteria used to filter intercepted communications – one critical issue in dispute in the Big Brother Watch case. How do we design safeguards within such a system to be at least as good as the previous (flawed) ones, and certainly no worse?
The dominant political mood seems to be that England and Wales should return to a legal and political system where rights are granted to citizens by the Crown in Parliament, through the passing of primary legislation, and through the operation of the common law, as opposed to rights being derived from a universal global agreement (policed by one dominant power), or international law more generally. Very well, we are in a multi-polar world now, and multi-polar systems require equivalence between cooperating regimes. Part of the UK’s new regulations should therefore include equivalence between the European and UK data protection regimes (as well as that of the United States), to facilitate cross-border data transfers. Were we able to achieve this, an updated adequacy decision would then have to be issued by the European Commission to confirm that UK data protection standards are still equivalent to EU standards following a proposed ECHR exit.
Article 8, as it currently stands, is not an unqualified right – interference with the rights protected by Article 8 is allowed for legitimate aims, such as national security or public safety. Current legislation such as the Investigatory Powers Act 2016 already gives the state broad powers of surveillance. The UK GDPR and the Data Protection Act 2018 are currently read together in light of Article 8 of the ECHR, especially where proportionality is concerned. Strasbourg proportionality is measured in light of the interference being lawful, necessary, and proportionate, and there is a significant body of case law to direct this interpretation.
In R (Catt) v Association of Chief Police Officers [2015] UKSC 9, Mr Catt was a 91-year-old peaceful protest participant, protesting inter alia against arms manufacturers. The Police placed his data in a Domestic Extremism Database maintained by the National Public Order Intelligence Unit. The database contained records of the names of individuals participating in protests, their ages, and addresses. Mr Catt’s name was retained by the police, even though he was not suspected of any crime. The proportionality assessment in the case concerned the purpose served by the retention of Mr Catt’s personal data, whether safeguards were in place against its misuse, and whether the retention time was excessive.
The majority, led by Lord Sumption, found the retention of the data was proportionate, but the dissent, led by Lady Hale, found it to be disproportionate. The outcome ultimately favoured data retention, because the data in question were less sensitive than those in the leading ECtHR judgment in S. and Marper v UK App nos. 30562/04 and 30566/04 (ECtHR 4 December 2008) in which DNA evidence and fingerprints were proposed to have been retained indefinitely from an individual who had been arrested but not convicted of a crime.
Article 8 being part of the UK data protection regime necessitated a change in English law following Marper, which was later confirmed in R (GC) v Commissioner of Police of the Metropolis [2011] UKSC 21, in which the Police continued to retain the DNA and fingerprints of individuals who had not been convicted. This was ruled unlawful following Marper, and hastened Parliament legislating on the matter in the Protection of Freedoms Act 2012. Whether England leaves ECtHR jurisdiction or not, Catt and the series of cases leading up to it are precedents which will continue to inform proportionality decisions as we enter a new age of mass protests and civil unrest.
Unlike most bodies interpreting international law, the Strasbourg Court does have enforcement mechanisms – meaning (in an ideal world) it exists to provide a real and tangible way for UK citizens to hold their government to account. The argument that it is being used by non-UK citizens to hold the UK government to account in the case of illegal immigrants is of course a valid one. Nevertheless, if we leave the jurisdiction, we should prepare to lose the privacy safeguard that it provides, as well as the deportation constraint. Most significantly, we lose the perception that data privacy is a fundamental right, something higher than statute. Our country’s understanding of data protection will shift from something linked to human dignity, to something more akin to procedural compliance, which in turn will change how judges evaluate proportionality. Too little has yet been written on the potentially significant outcomes of this change.
Such change may be inevitable: systems decay, and there is no use in fighting it. In creating the post-War consensus, our grandfathers tried to design a system from scratch and start again. While trying to unwind their mistakes, in a tense geopolitical climate of our own, and in tandem with a breakneck race to develop AI, we too will make mistakes. We will think that we know better than past generations, that we have finally got it right. We will think all the same things our grandfathers thought before us. When this happens stay vigilant, stay humble, and remember Chesterton’s fence.
Anna Richards.
Anna Richards has worked at the Ministry of Defence and House of Commons, and as a Judicial Assistant at the High Court. She writes for the Spectator, the Critic, and UnHerd, and is currently researching ECHR reform as part of a Pamela Thomas Research Award with the Society of Conservative Lawyers.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.