By Julian Petley, first published on INFORRM.
According to Peter Hitchens in the Mail, 22 June 2022:
“There’s no such thing as human rights … They are an invention, made out of pure wind. If you are seriously interested in staying free, you should not rely on these flatulent, vague phrases to help you. They are in fact a weapon in the hands of those who wish to remove your liberty and transform society”.
In his view, Article 39 of Magna Carta “is worth more than a page of human rights bloviations” because on it “hangs the presumption of innocence which protects us from arbitrary punishment”. The same applies to the Bill of Rights 1689, which lays down that “Parliament, not the king, is sovereign, and men may only be punished by the courts”. On the other hand, the European Convention on Human Rights, which, as Hitchens puts it, was “never meant to be directed against [sic] this country”, has proved to be “not much use against the Covid repressions of mass house arrest, travel bans and regimentation which swept Europe almost unquestioned and unopposed” (thus placing himself firmly amongst the ranks of those who for whom the right to act as they pleased during the pandemic outweighed the rights of others to be protected from the consequences of their selfish and irresponsible behaviour). In his view, we need to
get rid of these useless human rights, which protect us from nothing and give power to those who have not earned it. And let us once again learn to value, treasure and follow the great English documents which have in fact kept us free for centuries.
‘Alien Legal Concepts’
Many will be tempted simply to dismiss these sentiments as the usual Hitchens bloviations, but in fact they are entirely typical of the attitude of significant sections of the national press to both the Convention and the Human Rights Act 1998. As the former Chairman of the Press Complaints Commission, Lord Wakeham, noted in 2002, in the wake of the remarkable, albeit unsuccessful, campaign by the press to have itself entirely excluded from the Act, when the Convention came into being in 1953, Britain “was unprepared to import alien legal concepts into its sovereign Parliamentary and judicial system”. This was the view of David Cameron, who, in 2006, referred to the ECHR as a “foreign convention of rights”, and also of Attorney General Suella Braverman, who, as part of her bid to succeed Boris Johnson, has claimed that “the failure of the British government’s attempts to deport asylum seekers to Rwanda is a problem that ultimately stems from ceding jurisdiction to a foreign court” and that “we simply can’t have European courts deciding who can stay in our country”.
This has always been the view of Britain’s most atavistic national newspapers. For example, Tory press guru, Roger Scruton, writing in the Guardian (unusually) on 11 May 2013, complained that:
Instead of the common law of England we have the abstract idea of human rights, slapped on us by the European courts [sic] whose judges care nothing for our unique social fabric. Instead of our inherited freedoms we have laws forbidding ‘hate speech’ and discrimination that can be used to control what we say and do in ever more intrusive ways.
And to mark the sixtieth anniversary of the ECHR, the Mail, 3 September 2013, in an editorial headed “After 60 Years, Bring Back Britain’s Rights”, thundered: “Until we clip Strasbourg’s wings, we cannot begin to restore sovereignty and true justice to the nation that liberated Europe from the tyranny of arbitrary law”.
As research by Michelle Farrell and Edel Hughes published in the collection Human Rights in the Media (2019) has shown, in the first six months of 2015, a period covering the run-up to the commemoration of the 800th anniversary of Magna Carta and an election in which the Tories committed themselves in their manifesto to abolishing the HRA, there were 588 mentions of Magna Carta, nearly all of them overwhelmingly positive. By contrast, the 348 mentions of the HRA were almost wholly negative. So, for example, a Mail editorial, 16 June 2015, headed “Euro Judges Mock the Spirit of Magna Carta”, protested:
Like King John, the judges of the European Court of Human Rights are unelected. Like him, most are intellectually third-rate. But like him, too, they make up the law as they go along, seeking to exercise arbitrary power over peoples and parliaments. Isn’t this a denial of our most basic democratic right to the rule of law?
Cynicism, Self-interest and the Press/Government Nexus
However, behind the papers’ apparently ‘patriotic’ rhetoric there has always lain a much more cynical, self-interested and commercial motive for opposing the HRA, namely the fear that Article 8 might curb these newspapers’ ability to poke their snouts profitably into people’s private lives. This became particularly clear during Megan Markle’s case against the Mail on Sunday and MailOnline, which also illustrated the press/government nexus at its most incestuous and corrupt. Thus in the wake of those titles being resoundingly defeated in court in what was clearly a hopeless case from the start, MailOnline, 6 December 2021, ran an article headed “Vow to stop un-British ‘drift’ to privacy law as Dominic Raab eyes overhaul of Human Rights Act to ‘correct’ freedom of speech imbalance in wake of Duchess of Sussex court case”. This quoted him as stating that “the drift towards continental-style privacy laws, innovated in the courtroom, not by elected lawmakers in the House of Commons, is something that we can and should correct”, and adding: “I think that’s a good example of the kind of balance that we can strike with our own homegrown approach to this rather than the over-reliance on a continental model, which is effectively what the Human Rights Act has left us with”.
Absolutely inevitably, the MailOnline returned to this theme when, on 14 December 2021, Raab outlined his plans for a Bill of Rights. Killing several birds with one stone, the headline stated: “New freedom of speech reforms to be revealed to tackle ‘wokery and political correctness’ amid fears judges are ‘drawing up privacy laws by the back door’”. The article reported that “creeping European-style privacy laws will take a back seat to freedom of speech under major reforms unveiled today”. These reforms, it claimed, have been occasioned by “controversial rulings” that have “eroded freedom of expression – a key component of Britain’s democracy for centuries”.
‘Free Speech Does Not Mean Free Speech’
However, centuries of this kind of windy rhetoric cannot get round the plain and simple fact that there was no statutory right to freedom of expression in this country until it was enshrined in Article 10 of the ECHR, given domestic effect by the Human Rights Act 1998. As the Law Lords put it in 1936: “Free speech does not mean free speech; it means speech hedged in by all the laws against blasphemy, sedition and so forth. It means freedom governed by law”.
Thus freedom of expression was residual: that is, everything was permitted except that which was expressly forbidden. But that always was, and still is, a very great deal indeed: the most recent edition of Blackstone’s Statutes on Media Law (2013) lists over 50 laws that regulate media content in one way or another, but under the current government, prohibitions, or threatened prohibitions, are mushrooming at a truly alarming rate – for example, the Online Safety Bill, the proposed reforms of the Official Secrets Act, the Police, Crime, Sentencing and Courts Act, and the Higher Education (Freedom of Speech) Bill, which, like Orwell’s Ministry of Truth, will do exactly the opposite of what its name suggests. That these have been either ignored or indeed strongly supported by papers such as the Mail suggests that their concern for the freedom of speech that they claim to cherish is selective in the extreme, and that their only concern is the abolition of any constraints on their ability to do as they will – and in particular to invade people’s privacy in the pursuit of profit. As Stephen Sedley wrote in a seminal piece in the London Review of Books several years before the passing of the HRA: “Free speech for Rupert Murdoch means not being dictated to by the state about what he may print, whereas for people traduced by his publications free speech means an enforceable right of reply”.
Julian Petley is emeritus and honorary professor of journalism at Brunel University London His most recent book is the second edition of Culture Wars: The Media and the British Left (Routledge 2019), co-written with James Curran and Ivor Gaber. He is a member of the editorial board of the British Journalism Review and the principal editor of the Journal of British Cinema and Television. A former print journalist, he now contributes to online publications such as Inforrm, Byline Times and openDemocracy.