Brian Winston

The recent call by Conservative leader David Cameron for the repeal of the Human Rights Act is meaningless, as he does not propose stopping people appealing to the Court of Human Rights in Strasbourg, the procedure before the Act became law. But at least he does make opportunistic political sense, which is much more than can be said for the hostility of the British press to the Act. It is not rare for the press to bite the hand that feeds it, but the annals of self-inflicted harm have little to show as foolish as the newspapers’ current endless attacks on the Act. Which leads me to ask: has anybody in Fleet Street now engaged in spinning every story they can as an example of its malignant effect ever actually read the HRA?

The Human Rights Act, enacted in November 1998 and in force from 2000, is a simple, commendably brief couple of pages: “An Act to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights; to make provision with respect to holders of certain judicial offices who become judges of the European Court of Human Rights; and for connected purposes.” And what it says on the tin is what it does: incorporate directly a 50-year-old Council of Europe Convention, which British lawyers had drafted in the aftermath of the Second World War and which the UK signed in Rome in 1950, into UK law so that its provisions can be directly used in British courts. At one level, then, the HRA does not mean very much. For the last half-century, this Convention, imbued with the spirit of the common law rather than with approaches conditioned by the alternative continental legal codes, has exerted an influence over British legal proceedings. The Strasbourg Court, which is governed by its terms, has throughout this period been a place of appeal for British citizens, enabling them even to question the decisions of our highest court. We have lived with this, and without endless hysteria about it, ever since. Until the late 1990s, that is.

The 1998 HRA straightforwardly allows us greater and easier access to the terms of the Convention, but it does not incorporate any greater powers than it already had. The Act makes this clear in that neither it nor the Convention affect “the validity, continuing operation or enforcement of any incompatible primary [that is UK] legislation”. Indeed, on occasion we have formally “derogated” from its impact. For instance, in 1988 the Strasbourg court held that British anti-terrorism legislation of 1984, which allowed suspects to be detained without charge for five days, ran counter to its terms, but the British Government told the Council of Europe that the IRA situation was such that it was not going to feel itself bound by Strasbourg’s decision. The clause stood and clearly the UK Government could take the same view now with current anti-terror legislation.

But times and understandings change. We now have a heightened awareness of what the term “human rights” might entail and there is a far greater proclivity on the part of lawyers and their clients to cry foul on this basis. There is, though, a question as to whether or not this is a direct result of the HRA or whether this propensity and the Government’s initiative in passing the Act in the first place both reflect the same increasingly liberal social impulse. Either way the HRA is more a technical than a substantive piece of legislation. It means only that you do not have to wait until all remedies in British courts are exhausted before being able to invoke the Convention. Its protections are there from the off. There are no fanciful additions or extensions. There is, for example, no mention anywhere in it of a new inalienable right of animal rights campaigners to free Kentucky Fried Chicken or any of the other hair-raising and largely ludicrous tabloid fears.

This is not to say that the Act was passed without controversy, but in the 1998 debate the issue exercising the press, equally as wrong headed as the current demonising, was far more specific. Article 8 of the Convention states that: “Everyone has the right to respect for his private and family life, his home and his correspondence.” The fear was that the direct incorporation of this into the British law would bring in a statutory basis for invasion of privacy actions. This was the decade, remember, when the press was “drinking in the Last Chance Saloon” and the fact that the common law was (and is) a mess on privacy understandably caused concern. A chilling new law was a real threat and the press largely responded by demonising Article 8 as exactly such a statute.

It was, however, no such thing. The threat, as Jack Straw, the then Home Secretary, made clear to the House during the second reading of the Human Rights Bill, was more apparent than real: “It is worth pointing out that, in practice, the [European] Convention has already been extensively used to buttress and uphold the freedom of the press against efforts by the state to restrict it. There are at least four leading United Kingdom cases in which the Strasbourg Court has done that – and not one on privacy has detracted from such a line.” This is absolutely true. As Straw suggested, Article 8’s potentially restrictive impact has to be balanced against another provision of the Convention, Article 10: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” This is crucial for the press.

Ever since it heard its first free expression case in 1960, the court in Strasbourg has held that Article 10 trumps, as it were, Article 8. It has overturned less liberal anti-media decisions by courts in the signatory states, including some made in Great Britain. It is because of the Convention that, for example, The Sunday Times, after years of injunctions by UK courts, was in 1979 finally able to publish the truth about the disastrous side effects of Thalidomide. The concerns of 1998 over incorporating the Convention were therefore fundamentally misplaced, but nevertheless the Government responded to them by, uniquely and redundantly, writing into the HRA a specific clause making it clear that freedom of expression “rules”.

HRA clause 12.4 reads: “The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to

(a) the extent to which –
(i) the material has, or is about to, become available to the public; or
(ii) it is, or would be, in the public interest for the material to be published;
(b) any relevant privacy code.

Article 10 of the Convention, and this specific re-enforcement of it by clause 12 of the Human Rights Act, import for the first time in common law a statutory right to publish.

Free expression under the Convention is not, of course, unlimited. You still cannot mendaciously cry “Fire” in a crowded theatre. Article 10 states that: “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions and restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary.” Nevertheless, despite these not unreasonable caveats, having it thus set down is still a major step forward for the principle of free expression in our courts. Up to this point that right has been less securely grounded.

Free expression has never, for instance, applied with any degree of certainty to media other than the press. The stage was subject to direct censorship by the Lord Chamberlain for 231 years after 1737. Currently broadcasting content attracts the attention of the Secretary of State for Culture and Ofcom, a statutory quango. Indeed, as regards broadcasting and its variants, it is a criticism of the Convention that it does not sort out the position regarding new media, just as it did not when being drawn up in 1948. The Convention, in a reflection of 1948 technologies, leaves radio, television and film less free than print, theatre or art. Article 10 states, in a completely self-contradictory fashion to its basic premise of free expression being “without interference by public authority”, that this does not “prevent the state from requiring the licensing of broadcasting, television or cinema entertainments”. In 2006, with the proliferation of electronic “platforms”, it is easy and necessary to argue that the rights of broadcasting and new media ought to be brought in line with the old and Article 10 amended. But even as it stands, the Convention and the HRA are better than what we have had thus far.

Talk of a British right of free expression trails glories of English liberal rhetoric but before 2000 lacked a certain measure of legal substance. Born in the upheavals of the English Civil War in the 17^th century, the principle’s best Enlightenment articulation came from John Trenchard and Thomas Gordon, radical journalists writing under the pseudonym “Cato” in 1720. The right to impart information was, for them, a “sacred privilege so essential to free governments, that the security of property, and the freedom of speech, always go together; and in those wretched countries, where a man cannot call his tongue his own, he can scarce call anything else his own. Whoever would overthrow the liberty of a nation, must begin by subduing the freedom of speech…”

But in the hands of contemporary lawyers, however liberal for their day, this ringing observation becomes something more prosaic: “The liberty of the Press is indeed essential to the nature of a free state; but this consists in laying no previous restraints on publications, and not in freedom from censure for criminal matter when published.” This 1765 formulation by the 18th century’s most influential common law commentator, William Blackstone, is more or less the foundation of what we have lived with ever since. It is not quite a right to publish, but more a guarantee against prior constraint – censorship – and then only for printed matter. Now, however, in Article 10 of the Convention and clause 12 of the Act we have a clear statement in law of basic principle.

The press may still be drinking in the Last Chance Saloon but, worryingly, public debate now is not merely about tabloid excess. Senior politicians, who do not hesitate to make cheap points at the expense of previously inviolate judges, are certainly not shamed by 18^th-century attitudes towards free expression into silence about what they are increasingly quick to claim are the socially damaging effects of the press in general. The media’s propensity to hyperventilate about moral panics or shamelessly exploit sexual explicitness is one thing, but to be blamed for the collapsing authority of the political class and rising public cynicism and alienation is quite another.

The threat to free expression along these lines grows apace. Given the authoritarian tendencies of our rulers and their rude way with our ancient liberties, the HRA comes none too soon. It is our best bulwark against such attacks. It makes putting the press under direct statutory control, the ultimate threat, that much more difficult. For the press to be frightening the public by attacking the HRA for the sake of silly splashes is more than just ignorant. Were we to withdraw from the Convention and repeal the Act, the ultimate anti-HRA position, no section of our society would be rendered more vulnerable to loosing a basic freedom than the papers that would have helped bring this about. For the press to indulge in constant HRA scaremongering is potentially, and ridiculously, self-destructive.

Brian Winston is Pro-Vice Chancellor (External Affairs) at the University of Lincoln and a member of the British Journalism Review editorial board. He writes in a personal capacity.