With last month’s announcement that a majority Conservative Government would repeal the Human Rights Act, replace it with a ‘British Bill of Rights’, and in all likeliness withdraw from the European Convention on Human Rights, the future of human rights protection in the UK has been thrown into some uncertainty.
Ironically – and as if to underscore the need for a robust legal framework which protects human rights – almost immediately after the announcement came a number of embarrassing revelations: it has emerged that police have routinely misused their powers under RIPA to identify journalists’ sources. The government have also been forced to admit in court that legally privileged communications between individuals taking legal action against the state and their lawyers are ‘fair game’ for interception and surveillance by the intelligence services. Yesterday Justice Secretary Chris Grayling admitted that phonecalls between prisoners and their MPs have been monitored by prison staff. And a day before the human rights proposals were revealed came the announcement that a Conservative Government would seek to impose ‘Extremism Disruption Orders’ against those engaged in extremism, which would severely limit the public communications of those subject to them.
These issues raise significant concerns for freedom of expression and privacy, and politicians are not blind to this. Yesterday’s speech by Secretary of State for Culture, Media and Sport Sajid Javid was obviously intended to curry favour with journalists, but was filled with predictable conservative rhetoric on human rights. Notably, he announced that the Tories intend to strengthen and consolidate freedom of the press in their Bill of Rights, arguing that the ECHR and Human Rights Act ‘do not go far enough’ in doing so. This is a disingenuous and hollow promise; this blog post aims to set out why the right to freedom of expression will on the whole be far worse off under a Tory Bill of Rights.
Repealing the Human Rights Act
First a recap of the Tory proposals to repeal the Human Rights Act. The proposal document can be read here – predictably, it is driven by a malicious ideological contempt for human rights, relies on the ignorance perpetuated by certain sections of the media, and despite having been allegedly OK’ed by “QC level lawyers” is just plain wrong on a number of crucial but basic issues (for example, claiming that Strasbourg decisions set a precedent which English Courts must follow). I will not be dealing comprehensively with every possible criticism of the proposals– others have already done this and far better than I could – (I would recommend the following by Conor Gearty, Carl Gardner, Liberty, Francis FitzGibbon.) Instead I want to deal with three central points, upon which the proposals are based, and why they are utterly flawed.
1. “The European Convention of Human Rights is sound in principle but the Human Rights Act has gone too far, getting involved in situations it wasn’t meant to.”
The Tories have claimed that they believe the Convention itself and the rights it enshrines are sound in principle, (the Bill of Rights will supposedly respect the intentions and spirit of the Convention rights by writing those rights directly into English law.) Instead they claim it is “Labour’s Human Rights Act” which has overstepped the mark, allowing judges to invoke human rights law in issues where they should not be.
This is a ridiculous argument. The Convention is treated by judges as a ‘living instrument’, meaning that the rights are interpreted within the context of the day, rather than it being frozen in time in 1950 when it was drafted. It is this that ‘future proofs’ it, allowing it to remain relevant and to provide protection to individuals. Can it seriously be suggested that the Convention should have no application in cases concerning, for example, the retention of DNA – simply because it is a practice that would have been entirely unheard of in 1950? If that were the case we would not have had decisions such as S & Marper v UK – which declared unlawful the indefinite retention of DNA samples by police of individuals who had not been convicted of any offences. In the context of freedom of expression, should human rights law be disapplied in any cases involving the internet – simply because it hadn’t been invented in the 50s?
2. “Human Rights should only apply in ‘serious’ and not ‘trivial’ cases”
The proposals state that claimants will only be able to invoke human rights in ‘serious’ cases, and will not be available at all in ‘trivial’ ones. Who is the arbiter of seriousness in this context? The Conservatives will undoubtedly try to give this decision to a Secretary of State rather than a Judge. Judges are far more likely to make reasoned, rational decisions- politicians merely make political ones. A bill of rights is guaranteed to be tainted by the political flavour of the government of the day, meaning that value judgements will be made. When can a claim in which human rights are at stake be said to be trivial? Deportation proceedings which will separate children from their parents? Extraditions which will lead to torture? An invasion of privacy through surveillance? Censorship of political speech which curtails freedom of expression? Race or sex discrimination? These all sound serious enough to me but those with a political agenda will inevitably have different ideas.
3. “Human Rights should come with responsibilities”
Incredibly, the Tories plan to further limit the application of human rights by introducing a requirement that an individual must be deemed to have fulfilled his/her ‘responsibilities to society’ in order to benefit from the protection of their human rights. This is perverse, and quite how the Tories can claim to be ‘respecting the spirit of the Convention’ whilst introducing this requirement is beyond belief. The whole point of human rights is that individuals are granted them simply by virtue of being human –any requirement that they must come ‘with clean hands’ would deprive marginalised groups of their rights. The proposals ignore the obvious fact that most Convention rights are already qualified – ie they can be lawfully interfered with in pursuit of a lawful purpose such as the prevention of crime or the protection of the rights of others. It is not difficult to envision who could be deemed to have not fulfilled their responsibilities – those who are in prison, are in the country illegally (including asylum seekers), and in the context of freedom of expression, those who have blown the whistle on wrongdoing of an employer, or find themselves arrested for participating in a political demonstration could all be deprived of their rights entirely. Again this would be subject to the whims of the government of the day.
Strengthening freedom of the press?
While politicians laud the role played by journalists and the virtues of a free press in theory, the reality is often quite different, particularly when there is political embarrassment at stake. The Government did not commend the hard work of Guardian journalists who reported the Snowden revelations – in fact David Cameron accused them of lacking ‘social responsibility’ and threatened them with injunctions and ‘tougher measures’. The Snowden scandal is easily one of the most politically significant events of our time – but would its reporting be protected by a Tory Bill of Rights? Or excluded from its protection for being irresponsible?
Freedom of the press is one aspect of the wider right to freedom of expression – which encompasses the right to receive information as well as to impart it. (See this from Liberty on how the press have successfully used article 10.) By attempting to separate the two and drawing ‘freedom of the press’ as a distinct, prescribed concept the Conservatives will create a two-tier system, in which only journalism of which the state approves will be given protection. It is not just ‘journalism’ in the traditional sense that requires protection but the rights of everyone to express opinions. The suggestion that this system would provide for better protection of freedom of expression is ridiculous, and the Conservatives’ own proposed extremism disruption orders illustrates this perfectly.
Extremism Disruption Orders
Theresa May announced that a Conservative-majority government would introduce these measures against those who have been deemed to be involved in ‘extremism’, and would impose conditions such as a requirement that all social media posts are pre-screened for extremist messages, and media appearances, lectures and attendance at protests are restricted/prohibited.
Crucially, the orders will target individuals whose speech has not crossed the threshold into criminal offence territory. Instead they will aim to prevent “harmful activities” which may include a risk of public disorder, harassment alarm or distress, or a “threat to the functioning of democracy”. This is a ridiculously nebulous threshold, which would extend far beyond the ‘hate preachers’ many will be mindful of in light of what is currently happening in Iraq and Syria. Instead the law could easily catch activists and campaign groups. Groups like Occupy or UK Uncut, using twitter to call for an occupation or public protest in aid of issues such as economic inequality could easily be said to present a risk to public order, subjecting them to censorship by police.
This is not simply alarmism about mission creep that will not actually happen. David Cameron has declared that a Conservative government would look at “the full spectrum of extremism” rather than just the “hard end”. What he means by this will be all too obvious to anyone who follows developments in protest law in the UK. Political protestors and activists are routinely labelled ‘domestic extremists’ by police, and this summer we witnessed counter-terrorism police explicitly extend the remit of the Prevent strategy to student activism. Indeed EDOs will form part of the very same Prevent strategy.
The proposals are certainly alarming, but when taken with the Tory plans for human rights – which could in practical terms dismantle the right to freedom of expression entirely, they are outrageous.
If EDOs were introduced today under the current human rights framework, a court would be required by s.6 Human Rights Act 1998 to consider the impact of the order on the subject’s human rights – including freedom of expression under Art.10. This right can, of course, be interfered with lawfully – and the court would therefore have to give careful consideration to the exercise of the subject’s rights, and the merits of curtailing those rights for the purposes of national security, public safety, the prevention of disorder/crime, and the protection of the rights of others. The government would have to show that the restriction on the subject’s freedom of expression is prescribed by law, necessary and proportionate. This is (at least in theory) a sensible approach which attempts to give due regard to all relevant factors.
However, without the Human Rights Act the court would not be required to undertake any such balancing exercise. In fact, under a Conservative Bill of Rights, the subject may forfeit his/her freedom of expression altogether – the case may be deemed ‘trivial’ by a government minister; or the subject may be deemed to have failed in his/her responsibilities to society.
Conclusion: a dilution of human rights
It is clear then that despite airy promises about press freedom, freedom of expression will be far worse off under a Conservative Bill of Rights. The Conservatives should not be trusted – any bill of rights would weaken human rights rather than strengthen them, and they are playing a disingenuous sleight of hand by claiming that breaches of human rights such as the police’s abuse of RIPA powers indicate that repeal of the Human Rights Act is what is needed.
Javid’s comments on the right to privacy under article 8 are also rather telling:
“Article Eight, protecting the right to privacy, was created to fend off the threat of secret police conducting arbitrary searches for totalitarian regimes.
But in 2014 it is little more than an excuse for well-paid lawyers to hide the shady pasts of wealthy businessmen and the sexual indiscretions of sporting celebrities”.
This demonstrates a woeful disregard for (and/or perhaps ignorance of) how article 8 operates. It is a powerful defence against intrusion by the state as well as the press, and his reference to ‘secret police’ is rather ironic. As mentioned above it has been used to successfully challenge the indefinite retention of the DNA of innocent people by police. It has been used to challenge the police’s retention of photographs and personal information on political protestors who have committed no crime. It is currently being used to challenge GCHQ’s mass surveillance of the internet, and to hold to account undercover police officers that tricked women into long-term sexual relationships. It would be extremely convenient for the state if article 8 rights were to disappear.
The Conservatives are not interested in strengthening human rights, only destroying them.