The Firm Magazine reported this week that Grampian Fire and Rescue Service (GFRS)has refused to release incident reports to the next of kin of a man killed in a vehicle fire because doing so would breach the dead man’s “continued right to privacy.”
The article quoted Peter Murray, Assistant Chief Fire Officer as saying: “to disclose the information contained within the Grampian Fire and Rescue Service and into the public domain would breach that right” (being the right under Article 8 of the European Convention on Human Rights (ECHR) to respect for private and family life).
The GFRS is also reported as saying that “disclosure of an incident report would be likely to have a significantly disruptive effect on the way in which Grampian Fire and Rescue Service conducts its business.”
The details of the request and the subsequent actions of the GFRS can be seen in the article, but I thought I could offer some thoughts on the principle invoked.
Traditionally in Scots Law the dead have no rights, their property rights, for example, passing on death in accordance with the law of succession, or under valid will. This is a reason why wills for married couples usually include a “common calamity” clause dealing with the tragedy of both being killed in the same incident. If not for such a clause, a determination as to which one dies first could make a substantial difference to where the deceaseds’ estates end up.
Indeed, in Stair’s Institutions, (1st edition) at page 600, the learned writer refers to the Law of the Death-bed, whereby changes of wills or dispositions of property made on the death-bed were treated as invalid. In Stair’s view, some of a person’s rights were taken away even prior to death.
The reason stated for this, and we must remember that this was written in 1681, was “for the quiet and security of dying persons against the importunity of husbands, wives, children and other relations; and particularly against the importunity of Romish priests”. The latter were accused of persuading those on their death bed to give their assets to the Church, in return for promises of graces in Heaven, to the deprivation of their families. It must be remembered that in 1681, the Roman Catholic Church was rather unpopular, to say the least, in Scotland!
Beyond doubt however, the dead had no rights in Scots Law.
It is well known that the dead cannot be defamed in law. While de mortuis nihil nisi bonum is a fair maxim to live by, in a legal sense it can be ignored with impunity. Speaking ill of the dead has no legal consequences, at least as far as the dead are concerned.
The ECHR, and especially its direct incorporation into Scots Law by the Scotland Act, have greatly expanded debate about “human rights”.
For example, it is now clear that you don’t need to be a live person, but can be a “live” limited company, and have “human” rights. The insurance companies who challenged the Damages (Asbestos-related Conditions) (Scotland) Act 2009 as being in breach of their “human” rights were not prevented from doing so just because they were not flesh and blood. The judgment in the case of AXA General Insurance Limited and others (Appellants) v The Lord Advocate and others (Respondents) is awaited eagerly (on the basis I will get a blog post out of it). That case, clearly shows that insurance companies, for example, have “human rights”.
It is interesting that the GFRS make reference to Article 8. It runs 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.”
While there is a variety of jurisprudence regarding the start of “human rights” in connection with unborn children, I am not aware of case law regarding the end of human rights.
The European Court has refused to set down an absolute determination of the position as to when human rights commence and therefore it is not a surprise that there is no authority for the continuation of such rights after death.
Adam Rosenblatt wrote an excellent essay, published in Human Rights Quarterly 32 (2010) 922–951 looking at the question of human rights for the dead. The essay looks at this in the context of forensic examinations of bodies exhumed from mass graves. I would commend the whole piece to readers. It is thoughtful and thought-provoking.
Mr Rosenblatt comments that “The rights of the dead and our duties to them do figure prominently in religious, philosophical, and literary texts, from the various Egyptian books of the dead to Sophocles’ Antigone to Kant’s Metaphysics of Morals.” Whilst his focus is upon the rights of the dead body as opposed to the person, there is relevance in his study to the question posed above. He quotes the philosopher Thomas Nagel as giving the opposite of his task “When a man dies we are left with his corpse, and while a corpse can suffer the kind of mishap that may occur to an article of furniture, it is not a suitable object for pity. The man, however, is.”
Mr Rosenblatt refers to the concepts of agency and dignity as being fundamental to the consideration of “human rights” and emphasises that the Universal Declaration of Human Rights is founded very much on these pillars. He explains the concept far better than I can, but by way of shorthand, “agency “ refers to the person actually doing. Is there “participation” by the dead in any meaningful way?
As regards “dignity” at first sight this seems a straight forward concept, and one where it could more easily be thought that there can be an extension of existing rights to cover the dead. However, the concept of “dignity” is not easily measurable nor immediately visible. The Universal Declaration of Human Rights refers to all members of the “human family” as having inherent dignity. Does a dead person retain their status as a member of the human family on death, and where is the “inherent” dignity seated?
He considers the historian and activist Antoon De Baets whose theory is that the living have responsibilities to the dead, rather than the dead having rights. That analysis seems very attractive, especially as it does not require us to consider that the apparent change in the law as viewed by GFRS has been innovated without the consideration of Parliament. No-one in the Scotland Act debates was discussing the rights of the dead, yet if the GFRS position is accepted, then a huge new strata of rights had been created, pulled figuratively out of a European hat!
Mr Rosenblatt concludes slightly differently, noting that “The dead are often treated with respect and consideration, but they do not have inherent dignity. Thus … they cannot have human rights in the universal, inalienable sense that forms the moral core of every major human rights declaration and instrument.” Philosophically he views it as very hard to justify the dead having human rights.
If GFRS is correct in its stance, does this remain the case till the end of time, or is there a point when the rights expire? After all, confidential Government documents are released after 30 years, in most cases, and census details after 100 years. Do GFRS see this right as never-ending?
In any event, who is to vindicate the rights of the dead man, should it be thought that these rights exist and have been breached? If a person dies whilst party to a court action, then their executor can continue to pursue or defend the case in their capacity as executor. However, the deceased person is outwith the reach of the courts at that stage. Would the GFRS position require a fundamental review of the procedure used in such cases?
It would be interesting if GFRS would be willing to explain the basis for its ground breaking extension of human rights to dead people! However, I suspect that they will say that it would be a breach of the deceased’s human rights to release their legal advice on the question!
Random Thoughts Re Scots Law by Paul McConville 