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The Monstering of Human Rights

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The Monstering of Human Rights THE MONSTERING OF HUMAN RIGHTS Adam Wagner, 19 September 20141 Adam Wagner is a barrister specializing in human rights and public law. He is the founding editor of the acclaimed UK Human Rights Blog and regularly writes for The New Statesman, The Guardian and The Times on public law and human rights issues Introduction Monster / verb trans 1. Make a monster of […] 3. Depict as monstrous; defame, disparage2 Born as an idealistic response to atrocities of the Second World War, the European Convention on Human Rights (ECHR) is now seen by many to have betrayed the people it was designed to protect. The country’s most popular newspaper calls human rights law a ‘charter for criminals and parasites’; apparently, 75% of the British public agree.3 As the 2015 General Election approaches, at least one of the major political parties will propose major reform of human rights law and perhaps withdrawal from the ECHR. How has this happened? The current human rights system is relatively new, born only around 60 years ago. But some of the rights protected by the 1950 European Convention on Human Rights (ECHR) were long guaranteed under English common law, reaching back at least almost eight centuries to Magna Carta. This is no coincidence. The ECHR was largely drafted by British lawyers in an attempt to impose British democratic values upon the states it had defeated in the Second World War. That explains why the UK has until fairly recently been a strong supporter of the European Convention system. It also justifies some of the bewilderment when the European Court of Human Rights (ECtHR) has ruled against the UK. The ECtHR has transformed almost beyond recognition since its own modest beginnings, but, like an unruly teenager, it has also began to rebel against its parent. In October 2000 the UK experienced a constitutional revolution, bringing human rights firmly in to the popular consciousness. The Human Rights Act 1998 came into force. For the first time, public authorities were legally obliged to protect human rights 1 Talk to University of Liverpool Conference on Human Rights in the UK Media: Representation and Reality 2 Shorter Oxford English Dictionary, Sixth Edition 3 Human rights laws are a charter for criminals, say 75% of Britons’, Daily Mail, 16 April 2012, and, as importantly, individuals could bring a claim against those authorities at their local court for a breach of their human rights. This was a major shift in the balance of power between individuals and the state. But now, only a few years later, human rights are under attack. Criticism is so constant and the debate so polarised that the UK may soon, with full public approval, repeal the Human Rights Act and withdraw from the longstanding international human rights system which it was instrumental in creating. The press bears a significant portion of the blame. The right wing newspapers have enthusiastically promoted the narrative that the HRA is a charter for terrorists and criminals. Rather than a bulwark for ordinary people against the power of the state, the HRA is said to be a Trojan Horse which has brought terrorists to our shores and allowed convicted prisoners to live in luxury. Between 2000 and the present day, each new court success by a suspected terrorist or imprisoned criminal was eagerly reported and presenting as mounting evidence that the HRA was a dangerous menace which needed to be repealed. But much of what the papers report is wrong. And other cases are either ignored or reported without mention of human rights. When Christopher Jeffries was wrongly implicated in the murder of 25-year-old Joanna Yeates in 2010, his solicitor said the stories were designed to “monster” his client4. Human rights law has been monstered too. Human rights myths and fabrications have proliferated: the fleeing criminal suspect given takeaway fried chicken by police to protect his human rights; the prisoner granted access to hardcore pornography so as not to subject him to inhuman or degrading treatment; the illegal immigrant who avoided deportation because he had a pet cat; the ECtHR ruling against the UK in three out of four cases. There are many more. This paper will explore some of the underlying dynamics behind poor press coverage of human rights. I do not seek to carry out an study of every story about human rights, but rather to present some of the worst examples and explore the common themes. Human rights misreporting is not entirely responsible for public antipathy towards human rights, perhaps not even predominantly responsible, but it is a serious problem and one which may have caused irreparable damage to human rights protections in the UK. The Skewed Politics of Human Rights 4 Eight newspapers pay libel damages to Christopher Jefferies, Roy Gleenslade, The Guardian, 29 July 2011; http://www.guardian.co.uk/media/greenslade/2011/jul/29/joanna-yeates-national-newspapers (accessed 18 March 2013) THE MONSTERING OF HUMAN RIGHTS | ADAM WAGNER 2 It is impossible to understand the media’s approach to human rights without first understanding the political context. Opposition to human rights has become a familiar rallying call for politicians of every hue. The Prime Minister says it would make him ‘physically ill’ to implement a 2005 European Court of Human Rights judgment on prisoner votes;5 the Home Secretary tells her party conference about the illegal immigrant who couldn’t be deported because ‘he had a pet cat’, even though this is a description of a legal judgment so inaccurate6 that her (then) front bench colleague and Justice Secretary called it a ‘complete nonsense example’.7 Anti-human rights policies are so popular that the Conservative Party has promised to repeal the Human Rights Act (‘HRA’) 1998 if it obtains a majority at the 2015 election, and has threatened to withdraw from the ECHR8. Senior politicians war with judges for ruling in ‘defiance of Parliament’s wishes’9 whilst top judges call their comments ‘inappropriate, unhelpful and wrong’.10 Labour has had an inconsistent relationship with human rights, despite passing the HRA in 1998. The party has not always supported arguably its major legislative achievement. The increased threat of terrorism extinguished early enthusiasm for human rights. The HRA was quickly seen by many as a terrorists’ Trojan Horse, with the government constrained by judges over its anti-terror law plans. In particular, the courts sometimes prevented the deportation of suspected and actual terrorists and blocked detention without trial. Less than three years after it came into force, New Labour’s Home Secretary David Blunkett was already ‘fed up with having to deal with a situation where Parliament debates issues and judges overturn them.’11 In the same year, Prime Minister Tony Blair said that he was considering ‘fundamentally looking at the obligations we have under the convention of human rights’12 in response to problems deporting failed asylum seekers. And, after the 2005 London terrorist bombings, he told 5 Hansard Official Report, 3 November 2010; Vol. 517, c. 921 6 Adam Wagner, ‘What the first #catgate appeal judgment actually says’, UK Human Rights Blog, 6 October 2011) (http://ukhumanrightsblog.com/2011/10/06/what-the-first-catgate-appeal-judgment- actually-says/ accessed 9 March 2013) 7 Nicholas Watt, ‘Conservative conference badge Clarke ‘regrets’ accusing May of laughable attack on Human Rights Act’, Guardian.co.uk, 6 October 2011 (http://www.guardian.co.uk/politics/2011/oct/06/clarke- condemns-may-attack-human-rights-act accessed March 2013) 8 (http://www.dailymail.co.uk/news/article-2287183/A-great-day-British-justice-Theresa-May-vows-UK- European-Court-Human-Rights.html - accessed 13 April 2013) 9 ‘Judges 'sabotaged' MPs' bid to deport rapists and thugs... but Theresa May vows to crush judges' revolt by rushing through tough new laws’, Daily Mail, 16 February 2013, (http://www.dailymail.co.uk/news/article- 2279842/Theresa-May-Home-Secretary-vows-crush-judges-revolt-rushing-tough-new-laws.html); ‘Theresa May: Tories to consider leaving European Convention on Human Rights’, Daily Mail, 9 March 2013, http://www.bbc.co.uk/news/uk-politics-21726612 (accessed 14.3.13) 10 ‘Britain's top judge attacks Theresa May's criticism of judiciary’, Daily Telegraph, 4 March 2013 (http://www.telegraph.co.uk/news/uknews/law-and-order/9908528/Britains-top-judge-attacks-Theresa-Mays- criticism-of-judiciary.html - accessed 13 April 2013) 11 ‘Blunkett to fight extradition ruling’, BBC News website, 20 February 2003; (http://news.bbc.co.uk/1/hi/uk/2779343.stm - accessed 13 April 2013) 12 ‘Prime Minister prepares for war’, BBC News Website, 26 January 2003, http://news.bbc.co.uk/1/hi/programmes/breakfast_with_frost/2695903.stm THE MONSTERING OF HUMAN RIGHTS | ADAM WAGNER 3 the country that the ‘rules of the game are changing’ and that ‘should legal obstacles [to deportations] arise, we will legislate further including, if necessary, amending the Human Rights Act’.13 Jack Straw, one of the HRA’s chief architects, now argues that the European judges have ‘exceeded the limits of their proper authority’14. However, despite these tough words, whilst in Government Labour resisted tinkering with the HRA and seems to have little appetite for doing so if it forms a government in 2015. The Liberal Democrats have been the HRA’s most consistent supporters. Had the Conservatives won an outright majority in the 2010 election, the HRA is likely to have been repealed and replaced with a bill of rights, as the Conservatives have promised for some time.15 Instead, the Coalition agreement resulted in a very uneasy freezing of the status quo. It is striking how few MPs now openly support human rights, and how many of them misrepresent human rights judgments.
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