Bella Sankey (pictured) is policy director of Liberty
Back in May, with the dust barely settled on general election ballot boxes, the Government briefed it would scrap the Human Rights Act during the Government’s first 100 days in power.
More than seven months on, a repeatedly promised consultation has yet to materialise and blueprints for the “British Bill of Rights” – the Government’s planned replacement – have scarcely solidified beyond those outlined in the ludicrous strategy paper published by former Justice Secretary Chris Grayling late last year.
So we still can’t be sure what exactly the Government proposes to change – though “leaked” details continue to emerge with spooky regularity in certain sectors of the media. Among those muddled and continually changing proposals, is a vow to include “an explicit statement backing ‘freedom of expression’ for the press” in its new Bill.
This promise is a particular favourite of ministers – Sajid Javid declared to the Society of Editors last year, apparently without irony, that: “the Human Rights Act and the European Courts have not done enough to protect journalists who play such a unique role in our society”.
For very obvious reasons, the Government is keen to get the press onside – as if glib, unsubstantiated soundbites should be enough to force journalists to lay down their pens and stop asking all those annoying questions.
This is the same Government that has opened an unnecessary and unashamedly weighted review into the Freedom of Information Act – the second in three years – with the clear intention of curbing it. It’s breathtakingly hypocritical that ministers are clambering to portray themselves as champions of press freedom, while launching a bare-faced crackdown on the law that lets journalists hold them to account again and again.
But this glaring irony aside, the emphasis on “enshrining press freedom” is a startling example of this Government’s capacity for selectivity when it comes to hard facts and history.
Article 10 of the Human Rights Act reads: “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”.
Pretty unambiguous. No, it doesn’t explicitly mention the press (and it seems that explicit mention is all the Government’s promise actually amounts to). But it’s been used time and time again by British journalists – just as the Act’s been employed by soldiers, bereaved families, survivors of rape, domestic violence and slavery and so many others – to defend their rights. After all, journalists are humans too.
In case after case, Article 10 has been a bulwark for the protection of sources against powerful interests. The “unelected European judges” so often castigated by ministers prevented the Financial Times from having to hand over its source to Interbrew in 2001. Sometimes the mere threat of Article 10 has been enough to protect newspapers – as The Guardian found in 2011 when the Met came knocking for its phone-hacking sources.
Even the Act’s most vociferous critics haven’t been too proud to seek its protection – The Sun has employed it to challenge police snooping on its confidential sources. The Daily Mail has used it in its defence too.
The European Court of Human Rights has also led the way in protecting the media from the chilling effect of libel litigation: time after time, both injunctions ordered by UK courts and the costs imposed on journalists once trials are over have been found to breach Article 10.
It’s not just national papers that have benefitted. Milton Keynes Citizen reporter Sally Murrer was facing prosecution for receiving information from police before Article 10 forced the case to be dropped.
And it’s not just Article 10. Sunday Tribune journalist Suzanne Breen was able to resist an order to hand over confidential notes on the Real IRA using Article 10 and Article 2 – that’s the right to life.
Unique among the rights protected by the Act, Section 12 requires “particular regard” to be had to the importance of freedom of speech. It also provides further safeguards for journalists to make the test for any prior restraint on publication harder to meet.
As I write, the Act is coming to the aid of David Miranda, partner of Glenn Greenwald, in his appeal against the seizure of journalistic material during his detention at Heathrow in 2013. Liberty has intervened in the case, arguing that the counter-terror power under which he was stopped lacks adequate safeguards to protect journalists’ rights under the HRA.
Our newspapers have been rightly up-in-arms over the threat to the Freedom of Information Act. That some continue to back Human Rights Act repeal is like turkeys voting for Christmas.
Like FoI, the Human Rights Act has proved a crucial and precious tool in a journalist’s armoury. It protects sources – and protects reporters when they try to protect their sources. It protects open trials when the State or other powerful interests try to shield themselves behind anonymity. It helps the press resist the chilling effect of libel litigation. It allows journalists to challenge disproportionate police powers and protects them from arbitrary arrest simply for doing their jobs. Reporters elsewhere aren’t so lucky.
The British press – local and national – is world-renowned for refusing to pander to the powerful and for holding them account. Hopefully editors and reporters will stay faithful to that proud tradition when scrutinising this Government’s platitudes and promises in coming months.