The Daily Mail has been reassuring its readers that the delay in the repeal of the Human Rights Act (HRA) will not be indefinite and is just a matter of getting the detail right. “This is going to happen,” it quoted a government source as saying. “We will deliver it – but we are not going to be rushed.”
Getting rid of the HRA has been a Mail cause for several years. The paper accuses the Act of “undermining the sovereignty of Parliament and our judicial system”. It also denounces the European Convention on Human Rights, which the HRA incorporates into British law, as “a charter for criminals and politically-correct interest groups”.
The paper’s actions in relation to the Act, however, have not always matched these expressions of disgust and revulsion. Even in recent years the Mail has been content to seek the shelter of the Human Rights Act in court, and to threaten to use it against others. And it has also enjoyed the benefit of rulings arising from the Act – though without necessarily giving credit where it was due.
The most vivid example of this mismatch occurred three years ago, in a remarkable case where the Mail applied for a judicial review of a ruling by Sir Brian Leveson on the ground, in part, that the paper’s right to free expression under Article 10 of the HRA was threatened.
Sir Brian, then chairing his inquiry into the ethics, culture and practices of the press, had said he would allow national newspaper journalists to submit evidence to him anonymously. The case had been made to him, notably by the National Union of Journalists, that some working journalists feared victimisation if they told their stories openly.
Newspaper journalists and editors normally hold whistleblowers in high regard. By way of example, the Mail itself recently campaigned for the protection of whistleblowers in the NHS, stressing that internal whistleblowing was not enough.”Hasn’t it been shown time and again,” the paper asked, “that effective action to end abuses comes only after the public is alerted?”
Equally, in the recent controversy about the Regulation of Investigatory Powers Act (RIPA), the Mail was quite clear that anonymous whistleblowers must be protected.
However, when it came to whistleblowers alerting the public about possible abuses by the press, the Mail’s position was the opposite. It demanded that Sir Brian exclude such evidence, and when he refused to do so it appealed to the High Court to make him do so – citing the Human Rights Act to support its case.
Counsel for the Mail claimed: “Some of those who approach the Inquiry might be journalists who are disaffected with a particular employer or senior editor or who even have a grudge to bear: or they could simply be honestly mistaken. If granted anonymity then their evidence cannot be tested.” That would be unfair on the newspapers, the Mail argued – and would breach their right to freedom of expression under Article 10.
(Pause here: you may have forgotten this or your newspaper may have failed to report it at the time, but yes, the Daily Mail actually tried to use the Human Rights Act to gag whistleblowers.)
Judgment on the Mail’s application was given by Lord Justice Toulson, who rejected the paper’s arguments on the grounds that it was clearly in the public interest that press whistleblowers should be allowed to blow their whistles anonymously if they felt it necessary, and it was for the inquiry judge to decide how much weight to give their evidence.
While that is probably the most striking instance of the Mail seeking to rely on a piece of legislation which it tells its readers it abhors, it is certainly not the only one. For example, in a prominent case in 2006, when Prince Charles sued over the publication of parts of his private diaries the paper invoked its right to freedom of expression under the HRA (and was once again unsuccessful).
Equally, looking into the future, the European Convention on Human Rights forms an important part of the plans of the Mail and the other big newspaper groups to resist the implementation of the Leveson recommendations for press self-regulation.
In February 2013 the paper reported triumphantly: “A key plank of Lord Justice Leveson’s plans for press regulation breaches European human rights laws, leading barristers have warned.”
This was a legal opinion – apparently commissioned on behalf of the Mail among others – suggesting that the disadvantages that will fall upon news publishers refusing to participate in a recognised, Leveson-standard regulator would violate Article 10 of the Convention. Though the opinion has since been disputed by government and other lawyers, it is clear that invoking the Convention is likely to be an important part of the obstruction of the Leveson process by the corporate newspaper publishers, including the Mail.
No less triumphant was the Mail on Sunday claim in 2012 that one of Sir Brian Leveson’s own advisers had asserted that his self-regulation proposals would breach the Human Rights Act. (Again, however, this has been rebutted. )
And not only does the Mail not hesitate to seek the benefits of the HRA, but it is also happy sometimes to see those benefits bestowed on others. A conspicuous example was the case of Gary McKinnon, the hacker whose extradition to the United States the Mail campaigned to prevent.
In October 2012 the Home Secretary, Theresa May, used powers under the HRA to prevent McKinnon’s extradition on the grounds that it would be incompatible with his human rights. The Mail, however, could not bring itself to express gratitude for this helpful legislation.
So there you have it. Just as the Mail takes a principled stand in favour of whistleblowers except when they might reveal something about the Mail, so the Mail takes a principled stand against the Human Rights Act except when that law might work to its advantage.
Of course it is natural for lawyers to work with the material that is to hand, and not to pick between laws they like and laws they dislike, and if the Mail was a lawyer that might be an explanation for its conduct. But the Mail is not a lawyer. It is a newspaper, and more than that it is a newspaper that moralises and which finds few things more immoral than hypocrisy – saying one thing while doing another.
Again and again the Mail has told its readers that the Human Rights Act is hateful and must be scrapped, while again and again the same paper has quietly made use of the Act in its relations with others – even to the point of attempting to gag press whistleblowers. That is surely hypocritical.
** This is cross-posted with the kind permission of the author and Press Gazette where it was originally published **