In Craig v Her Majesty’s Advocate (2022) UKSC 6 the Supreme Court consider the “in accordance with the law” element within Article 8(2) of the ECHR. An interference with Article 8(1) guaranteed respect for private and family life is capable of being justified under Article 8(2). Such interference can be justified only if (1) it is “in accordance with the law”, (2) pursues a “legitimate aim”, and (3) is “necessary in a democratic society”.  The Supreme Court explains at paragraph 49 that in order to satisfy the first of those three requirements, the interference must be in accordance with domestic law and the domestic law must meet the requirements of the rule of law, so as to afford adequate legal protection against arbitrariness. The Supreme Court states at paragraph 50 that this is an absolute requirement. There is no margin of discretion in meeting it.

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