The UK government’s agenda to overhaul the Human Rights Act puts freedom of expression centre stage. As part of ARTICLE 19’s Boundaries of Expression series, Jo Glanville explores its impact on protecting our universal rights.
In its consultation to overhaul the Human Rights Act, the UK government has singled out one right above the rest: freedom of expression. It’s proposing to strengthen it and increase protection for journalists’ sources, while inviting respondents to outline other measures for further boosting freedom of speech.
That’s the same government that is so keen to undermine the right to protest and is not prepared to introduce a public interest defence in the Official Secrets Act. Human rights advocates are naturally sceptical.
‘The Human Rights Act as it exists is a fundamentally sound document,’ says Quinn McKew, executive director of ARTICLE 19. ‘It reflects the rights of individuals to stand up for themselves and to push back against tyranny, whether that’s tyranny of the majority or the minority. At some level you have to start wondering if this is a cynical political act, particularly using freedom of expression as the wedge issue that they’d like to put forward as the justification.’
The Tory Party set its sights on the Human Rights Act 16 years ago, when David Cameron, then leader of the Opposition, proposed to repeal it: ’to define the core values which give us our identity as a free nation’. The justice secretary, Dominic Raab, made his own views very clear in his polemic The Assault on Liberty in 2009, published a year before the Tories came back to power, and his agenda is hard-baked into the government’s consultation. In his comments to the media, Raab has had a go at ‘continental’ privacy laws and political correctness, blurring human rights reform with the war on ‘wokery’. The Tories’ selective championship of free speech betrays its ideology rather than sincere protection of a human right.
‘The government is quite adept at weaponising certain rights and certain ideas in its culture war narrative,’ says Jun Pang, Policy and Campaigns Officer at Liberty. ‘I think it’s pretty clear when you look at the consultation itself that it’s trying to focus on celebrity injunctions and playing off the populist narratives around freedom of expression in order to justify the rest of its proposed reforms. It’s very hard to see the government’s focus on freedom of expression in this consultation in good faith.’
When the Human Rights Act was passed in 1998, the aim was to ‘bring rights home’ by incorporating the European Convention on Human Rights into UK law and allowing human rights cases to be heard in domestic courts rather than the European Court of Human Rights in Strasbourg. The government’s consultation claims that the influence of Strasbourg’s judgments has created ‘a democratic deficit’ and criticises the courts for undermining Parliament. In the wake of Brexit, the government’s vision of a British Bill of Rights appeals to the same isolationist rhetoric. Freedom of expression has become the rallying standard in this battle ‘to restore a proper balance’, as the government puts it.
The plans for reform in fact threaten to undermine the very basis of protecting our rights. They include a permissions threshold to weed out ‘spurious cases’, requiring claimants to demonstrate that they have suffered a significant disadvantage, and proposals that damages should be dependent on a claimant’s conduct so that only those considered deserving of rights will be protected. Human rights will no longer be universal but conditional. By radically reshaping the framework of human rights, the government is in fact likely to trigger more UK cases in Strasbourg. Jun Pang is concerned that ultimately the government may seek to withdraw from the European Convention on Human Rights itself.
Balancing freedom of expression and the right to privacy
When the Human Rights Act was first passed, there was intense disquiet in the media about the creation of a privacy law. Breach of confidence had been the only remedy for people against media intrusion. The media’s fears were realised when Naomi Campbell won a landmark privacy case on appeal against the Daily Mirror in 2004, after the newspaper published a story revealing that she had attended a Narcotics Anonymous meeting. Although section 12 of the Human Rights Acts requires the courts to have particular regard for freedom of expression, the Campbell judgment made clear that freedom of expression should be balanced against the right to privacy.
Quinn McKew at ARTICLE 19 thinks this is the correct approach. ‘One of the challenges for freedom of expression and privacy is that people like to put them as oppositional issues – that you can’t have privacy and freedom of expression at the same time. You need to be aware that sometimes when removing privacy, you’re removing people’s ability to express themselves – because there’s a chilling effect that takes place. That’s one of the arguments we would make in balancing privacy and expression.’ The government is proposing to strengthen section 12 and argues that there should be a presumption in favour of upholding the right to freedom of expression.
Human rights advocates are concerned that the proposals could also threaten privacy rights more broadly. ‘There might be a lot of other cases that are affected,’ says Jun Pang. ‘Journalists who try to take out injunctions to stop people attacking them because that is a threat to their private life or people who take out injunctions to stop people blackmailing or harassing them. A blanket rule like this would limit the discretion of judges to consider these delicately-balanced issues.’
Critics in the media, however, claim that the courts have effectively redrawn the Human Rights Act by consistently emphasising privacy at the expense of freedom of expression.
In February, Bloomberg lost an appeal following publication of a story in 2016 in which it named an executive at a then UK-listed company who was under criminal investigation. The executive had not been charged. The Supreme Court ruled that the story was an invasion of the executive’s privacy: a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation. John Micklethwait, editor in chief at Bloomberg News, has expressed concerns that the judgment will prevent the press from reporting on wrongdoing; this was not a story that exposed details of the executive’s private life, but his business activities: ‘the powerful can keep their identities secret pretty much from the moment they are investigated until they are convicted’. It’s a judgment that gives weight to the government’s call for reform.
Don’t undermine other rights
Leading media lawyer Gavin Millar QC points out that the government already has the power to strengthen freedom of expression in Parliament, rather than reforming the Human Rights Act as a carrot for the media.
‘The blame for failure is laid at the door of the Human Rights Act, but it can be laid at the door of government for being inert and inactive. They have had the means to do it for the past 20 years. We could pass defamation laws that are like the First Amendment. We could pass an anti-SLAPP [strategic lawsuit against public participation] law and stronger statutory protection for sources. They haven’t been pro-active enough on freedom of expression.’
The government is also considering how to reduce interference with Article 10, which protects the right to freedom of expression, to ‘limited and exceptional circumstances’. This sounds like a positive move for freedom of expression, but, as Liberty has pointed out, it could also backfire by excluding some speech from protection.
Media freedom clearly needs stronger defences, but a serious programme for reform should not be part of an ideological agenda that unites the Tories’ disparate bêtes noires – from its disapproval of what it calls ‘rights culture’ to stamping out political correctness. The Joint Committee on Human Rights published a report in April stating that the government proposals for freedom of expression could create a ‘hierarchy of rights’, undermining the principle that all rights are equal.
‘From our perspective, an emphasis and focus on primacy of freedom of expression as fundamental to the achievement of the right is welcome,’ says Quinn McKew. ‘We do feel that, if you look at different research, the exercise of expression is a fundamental precursor to the ability of democratic societies to function. Recognising that is a good thing, that’s something we can support, but we are also wary of the issue being used as a Trojan horse that then hides a manner of other problematic language and issues within a proposed bill of rights that undermines some of the fundamental human rights that are protected by the existing Human Rights Act. It’s a balancing act and we need to be careful about what we’re losing. We don’t want freedom of expression to be the reason for undermining other rights that people inherently have.’
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Jo Glanville is a journalist and editor. Her writing has appeared in the Guardian, London Review of Books and the Observer, among other publications. She is editor of Looking For An Enemy: eight essays on antisemitism (Short Books, UK; WW Norton, US, August 2022).