In this inaugural Media and Public Policy lecture, organised by the Media Standards Trust and the King’s Policy Institute, Baroness Helena Kennedy QC examines the damage done to human rights protection by distorted and inaccurate coverage of the Human Rughts Act in the British press.
The audio recording from Baroness Helena Kennedy’s recent speech is now available to download on iTunes and Stitcher, and to stream on YouTube. An edited transcript of Baroness Kennedy’s talk follows.
‘Inhuman Rights’ – Is The Sun right about the Human Rights Act?
Baroness Helena Kennedy QC (edited text)
Anatomy Lecture Theatre, King’s College London, 20th May 2014
As we enter the last year before a general election, political parties will be searching out the clear blue water between themselves and their opponents. One of the issues which will undoubtedly appear on election manifestos will be the Human Rights Act, which has polarized opinion and become a political warzone. While the Liberal Democrats and Labour will commit to defending the HRA and the UK’s link to the European Court of Human Rights, the Conservatives will again promise to abolish the HRA and probably undertake to create a new UK Bill of Rights.
In the modern world it would be impossible to be seen to abandon human rights altogether. The debate will be whether the UK can break away from the European Court, or at least construct some sort of arms-length relationship, which allows the UK to ignore the court’s rulings on occasion. Neither will win us many friends in Western Europe, but Mr Putin will happily endorse and emulate such a shift, as he does not much like the European Court’s rulings either.
What is it with human rights? Why should a set of values which seem so clearly protective of our humanity and which speak to our better selves as citizens of the world be so controversial?
Of course there are those who are just ill-informed. There are those who are hostile to the European Union, who confuse the European Court of Justice (whose jurisdiction largely deals with the commercial, trading and employment issues emanating from the economic union) with the European Court of Human Rights – a totally separate court.
The European Court of Human Rights was a distinct creation from the European Economic Community. It was established by the European Convention on Human Rights, a treaty brought into being in 1950 with the backing of Churchill, which was ingeniously drafted by a number of leading British Conservative lawyers, including David Maxwell Fyffe, the Conservative Attorney General. It was a direct response to the horrors that had taken place in Europe – the Holocaust and the persecution of minorities. It was implemented soon after the Nuremberg trials, which had highlighted the problem that lawyers and judges could claim that they were simply following the laws passed by the German parliament, the Reichstag.
The creators of the convention were picking up the challenge of the Universal Declaration of Human Rights to make human rights a reality within domestic legal systems. The purpose was to create norms that reached beyond nationhood and which set a high bar for legal systems of all kinds. It was a template of values that all legal systems could follow. Independent judges would not be able to defend complicity in abuse by saying they were only doing what parliament required of them.
The European Convention was the first instrument to give binding force to a number of the rights contained within the Universal Declaration. It was the first treaty to establish a supranational court to ensure that states fulfilled their undertakings. It allows any individual, who believes his or her rights under the convention have been violated, to bring a case. This gives the individual a role in an international arena – traditionally only states had such a role in international law. As a result, the Convention was a game changer. It was a singular moment in the development of International Law and the British were largely its authors.
However, instead of seeing it as a visionary achievement it produces crazed responses. Wild eyed opponents froth at the mouth when the Court is mentioned. For some there is almost patriotic mania at the very idea that there should be the sacrifice of any national sovereignty. Yet that was precisely what we signed up to: a small loss of some sovereignty so that a higher ideal was achieved – international justice. And as globalisation has increased, the need for international legal regimes has become the more imperative not the less. The idea was to pull people together into a commitment to high ideals.
The treaty started off with 12 signatory nations – all members of the newly created Council of Europe; but now membership is far, far wider, and much greater than the membership of the European Union. At present there are 47 countries – and one of the main challenges is to raise human rights standards across a wide swathe of Europe, including in Russia, Moldova, and Hungary, where the rule of law is often fragile and rights are often abused. In fact, creating international standards on human rights is not only vital to securing justice; it is essential to trade and investment. The rule of law and the protection of rights creates greater stability and reduces financial risk.
The Media and the Human Rights Act
What is interesting is that the party and the parts of the media which are so committed to the idea of the individual do not extol the virtue of the European Convention – still the only international human rights agreement providing such a high degree of individual protection. The Convention was designed to incorporate a traditional civil liberties approach to securing effective political democracy, recognising that majoritarian democracy alone was insufficient to make for civilised, just societies.
I was recently a member of the Commission set up by the coalition government to consider the creation of a British Bill of Rights. It became clear at the first meeting that even the word ‘British’ might be contentious in other parts of these Isles, so we settled for considering a UK Bill of Rights. Some of the Conservative members of the commission eventually showed their hand as what Americans call ‘original intention theorists’. Original intention theorists belong to the Antonin Scalia School of conservative legal opinion which insists on interpreting the US Constitution as the founding fathers intended. It is for this reason that gun control is impossible, despite the regular mowing down of children, and it is for this reason that it took so long for the law to act on equal civil rights for African Americans and women. The English originalists think that the European Convention is being taken to places that were never within the contemplation of the drafters. I am sure that it is. Discrimination against women and homosexuals were all part of life in 1950. The death penalty was on the statute books. But most lawyers take the view that the law is a living breathing organism that has to be capable of adaptation to changes within society.
The Human Rights Act, passed in 1998, incorporates the ECHR into English Law. Even before its introduction there was a welter of complaint in sections of the press that it would create a charter for criminals, terrorists, and illegal immigrants. Because human rights will be invoked by all manner of people, including those who have committed crimes, they can arouse deep passions. The way that criminals are dealt with in civilized society, however, is to put them before courts and then have them appropriately sentenced. You do not treat them as though they are inhuman. Furthermore, the fact that people might claim breaches of their human rights does not mean courts will necessarily uphold their claim. Often, the reporting would have you believe otherwise.
One of the fascinating things about this issue is that many of the individual cases that elicit a gut reaction from parts of the press (most notably the Sun, The Daily Mail and the Mail on Sunday, The Telegraph and to a certain extent The Times) tend not to be mentioned at all by the other mainstream news outlets. This means that from the public perspective, the only information they see about these cases is the coverage in the right wing press. The coverage is almost always framed so as to illustrate the absurdity or injustice of the Human Rights Act – with claims that men in prison have demanded their human right to have pornography supplied or that illegal immigrants have evaded deportation because they have claimed that responsibility for a cat amounted to the right to family life. But even at the less ludicrous end the reporting is often suspect.
Let us look at a couple of examples.
Misreporting the Human Rights Act
The case of Abdi Ismail was reported in the tabloids as the failed deportation of a Somali criminal because of the Human Rights Act. In fact, he was convicted of Actual Bodily Harm, served 15 months in prison, and was then held in detention awaiting deportation for 18 months. He was given bail awaiting deportation, with an electronic tag. Home Office delays had prevented his deportation, rather than the Human Rights Act.
Or take the case of Aso Mohammad Ibrahim, an Iraqi asylum seeker who killed a child by reckless driving in 2003. Ibrahim was only given a four month sentence for his crime, despite his previous convictions. This sentence was less than the twelve months required for deportation proceedings to take place automatically, and after the end of his sentence, the Border Agency failed to complete proceedings to have him deported. Due to public pressure, election fever, and tabloid campaigning, deportation proceedings began again in 2010. In the intervening seven years, however, Ibrahim had married a UK citizen and had two children. The immigration court ruled that they had left it too late, and that his expulsion would contravene Article 8 of the European Convention on Human Rights – the right to a family life.
The media reporting made little reference to the failures of the judicial system or the Border Agency, but rather focussed on the Human Rights Act. Headlines such as “Crazy ‘Human Rights’ killed my only child” (The Sun, February 2011), and “End the Human Rights farce: Amy died. He got a slapped wrist” (The Telegraph, May 2011) were typical of the reportage. The father of the girl who was killed has actually acknowledged the misreporting: “The Border Agency issued notice to Ibrahim that he was required to leave the UK. When I was told that the Human Rights Act was to blame for the lack of justice for Amy, it was really just covering a Home Office error”. To defend the Human Rights Act is not to defend Ibrahim’s behaviour, but to recognize that in many cases it is not the Human Rights Act that is at fault. But it is a convenient scapegoat.
The right to family life has been blazoned as a get out of jail free card. In fact, most cases where the right is invoked to prevent deportation are lost. Where they succeed is often where the person has lived here since childhood and gone through schooling here.
Securing justice through the Human Rights Act
Of course there are abuses of the Human Rights Act, with people trying to invoke spurious rights, and it is these that we hear about. We hear less about the incredible advances in securing justice through the act. And yet, the Human Rights Act has brought huge victories for British citizens. Preventing local authorities from snooping on law-abiding families, removing innocent people from the DNA database, preventing rapists from personally cross-examining their victims in court, defending the rights of parents to have a say in the medical treatment of their children, holding local authorities to account where they have failed to protect children from abuse, protecting anonymity of journalists sources, upholding the rights of elderly couples to be cared for together in care homes, preventing someone from being sacked for wearing help for heroes wristband, deciding that the mentally ill have a right not to be deprived of liberty, and affording greater protection for citizens from the random use of terrorist legislation. The press that hates the Human Rights Act does not give the act credit when it has been the legal tool that has secured just outcomes.
The case of Beth Warren has been covered in some depth by the press this year. Her husband died of a brain tumour, endured long years of treatment, and before radiotherapy had chosen to have his sperm frozen, as he knew the treatment would leave him infertile. The NFEA (the regulatory authority) said the sperm would have to be destroyed by 2015, as he had only signed for it to be stored for 5 years. Her husband, Warren Brewer, died in 2012 and his wife wanted to complete her grieving before deciding whether she wanted to have his baby. The newspapers were wholly sympathetic to the woman, who eventually won her case invoking Article 8 of the Human Rights Act, the right to family life. Yet none of the right-wing press mentioned the role of the Human Rights Act in this case.
The treatment of under-18s in police custody was another issue that the press sympathetically covered. They covered the story with sympathy, but again, they could not bring themselves to mention the legal tool with which the case was won: the Human Rights Act.
Gary McKinnon’s case was another that caused problems for the tabloids. The Daily Mail hailed the blocking of his extradition by Theresa May as a victory for their campaign for common sense on behalf of Gary. “A great day for Gary – and British justice: After a 3-year Mail campaign bitterly opposed by America, British courts and civil servants, Theresa May yesterday courageously decided Asperger’s sufferer Gary McKinnon will NOT be extradited for hacking Pentagon computers in pursuit of little green men”. The Mail and the Sun both referred to Mrs May as invoking Human Rights grounds but did not mention the loathed Human Rights Act.
In recent years another aspect of the Human Rights Act has become a slight obsession for parts of the media. Article 8 has provided – for the first time in UK law – legal protection for the privacy of individuals. This part of the Human Rights Act has provided restitution for people such as Max Mosley and Paul Weller: over the last decade the courts have been increasingly prepared to uphold claims by people – often famous people – that their right to privacy was abused by the publication of information or photographs.
For many in the media, celebrity means to sacrifice of the right to privacy. Actors, musicians, politicians, television performers, footballers are all considered fair game and not entitled to the rights enjoyed by the ordinary citizen. I do not accept that fame justifies the torment of media harassment; I do not accept that the treatment of Sienna Miller, the mother of Hugh Grant’s child, or Millie Dowler’s parents was in the public interest. The internet has driven sales of papers down. With added competition, papers have to be more and more competitive with a greater urgency than ever before to secure headline stories. In some cases, this has led to a descent into more unethical practice.
The idea of the scoop is not new. Evelyn Waugh’s brilliant book gave us an idea of the lengths to which journalist will go to get one. However, the ramping up of “scoop madness” meant ethics often were of secondary importance. ‘Public interest’ increasingly meant ‘what the public are interested in’.
Law, like ethics, is rarely about the black and white. There is almost always a balancing process, an engagement of our judgement. If money or profitability is the only arbiter then ethics are lost. The Human Rights Act embodies principles of fair treatment and humane behaviour which have been in our law since Magna Carta. It is the principles that matter. If we do not defend our traditional liberties we will lose them. A free press should be protecting human rights – that is what a free press is really for.