Act is likely to be doomed whoever is Prime Minister

June, 2016

Both the leading contenders to become the new Prime Minister, Boris Johnson [UPDATE: 30/06 Johnson rules himself out.  Michael Gove is standing]  and Theresa May, are committed to getting rid of the Human Rights Act [HRA] and want to introduce a British Bill of Rights [BBoR].  It is also true of Salisbury’s MP, John Glen who has written to that effect in the Salisbury Journal.  The commitment was in the Conservative party’s manifesto in last years general election.  This is yet to see the light of day and how it will differ from the existing act has still to be made clear.  We have suggested that the only thing which may stop this happening is that considerable time will now be needed to negotiate our exit from the EU; negotiate new trading arrangements with the EU and the rest of the world, together with a mass of budgetary issues once we no longer are in receipt of EU regional, sectoral and other funds.  Whether there will be time for a long battle with the Lords over the HRA is in doubt.

Perhaps now is timely to ask why is it that the HRA has become almost a dirty word and why the media in particular has waged a relentless campaign against the act and against the EU itself, culminating in the Brexit vote last week.  Part of the answer is in that last sentence: the HRA is the embodiment in British law of the European Convention on Human Rights and as such is tainted by its association with Europe generally.  But that is not the whole answer because it would be possible to be against the EU for economic reasons – slow growth, high unemployment and low investment for example – but still be in favour of the act.

RightsInfo in a recent post has argued that we need to learn 5 lessons from all this and argues for a changed approach to countering the inbuilt media bias against the EU project and the ECHR.  While this is true it is nevertheless important to understand where this bias comes from.  Why is a large section of the media (roughly 70%) so viscerally against the act and dedicated to writing misleading or plain wrong stories about Brussels and Strasbourg?  Unless we can gain an understanding of this then efforts to counter it and change minds are probably doomed.

Loss of Britishness

The first reason may be the sense that we have lost a sense of Britishness acquired over the last eight hundred years, especially as far as the law is concerned.  This was very evident during the Magna Carta celebrations last year.  There was this sense of 800 years of seamless progress culminating in the corpus of law we now have.  Then along came Europe and imposed a new law upon us which had wide ranging implications for all our law in the UK.  It said that human rights had to be respected and for some this came hard.  Despite the fact it was Churchill who pushed for the European Convention and our support for the UN Declaration of Human Rights in which we played – at times reluctant – part, the ECHR was seen as an intrusion into our affairs.  We simply did not need it and there was resistance to its application in the UK.

Magna Carta was about the release of power by the king to his barons.  Much of subsequent legal history has been about the steady release of power by those elites who hold it to the ordinary people.  As industrialisation gradually took hold in the nineteenth century for example, there were prolonged battles to obstruct and delay public health reforms; improved safety in factories; better housing, and for ordinary people to be educated.  The HRA turns this approach on its head and says that there are basic rights that everyone should have.  It also gives people the chance to challenge, using the legal process, those in power.  It comes as no surprise therefore that those who have the power are miffed at its loss or at least diminution.

One can also detect a kind of arrogance.  We won the war and helped put in place a set of rules for them (the Europeans) to live by.  We didn’t need them because we have this ancient and trusted system.  When we started allowing appeals to Strasbourg it came as something of a shock when rulings started to go against us.  Suddenly, this superb system didn’t seem so wonderful after all.  Ordinary people spoke and something of a shiver went through the political elite.

Gift to the world

Linked to this is that the British system is now used around the world principally by countries that used to be colonies.  From the USA to New Zealand,  much of Africa and the subcontinent, the system of justice is based on what was developed here.  Europe on the other hand has a different legal system and does not (with a few exceptions) have a corpus of common law.  It is difficult in these circumstances for some people not to feel that Europe is a ‘Johnny come lately’ to the legal scene so why should they tell us what to do?  After all, fascism was rife in Europe so who are they to lecture us on human rights?

The media and neo-liberalism

One of the strangest paradoxes of the EU debate and the passions the referendum unleashed is that our close links to the USA are almost never mentioned.  Yet the effect of the USA and its major corporations have arguably as equal an effect on life in the UK as do the machinations of Brussels.  We have witnessed major tax dodging by US corporations such as Google, Amazon, Starbucks et al amounting almost to plunder.  Starbucks graciously agreed to pay a voluntary amount and Google a trifling sum.  Europe has shown itself to be keener and tougher in its approach to taxing these behemoths.

Throughout the whole debate following the Snowden revelations, it was the linkage between the American spy agency NSA and GCHQ which was a significant fact.  NSA used GCHQ to hoover up information on US citizens which, under their Constitution, they were not allowed to do.  Both were engaged in mass surveillance largely uncontrolled by our politicians who were – on this side of the pond at least – asleep at the wheel.

A large chunk of our media is owned by Americans, most particularly the Murdoch family.  This was allowed to happen to help Mrs Thatcher gain power.  The important point however is that these proprietors are keen believers in the Neocon agenda.  For them good government is small government.  They still believe in the merits of unfettered free markets.  The emphasis on the social chapter in Europe is not something they are at all keen on.  Power is also important and as we saw during the Leveson hearings, they were used to slipping in and out of the back door of Downing Street for surreptitious and unminuted meetings with the Prime Minister of the day.  Europe makes all this harder.  Instead of a ‘quiet word’ with the PM, there are 27 other countries to deal with.

American power is therefore widely felt and in many areas has greater influence than anything coming out of Brussels.  Yet it is Europe and Europe alone which fills the media and the airwaves.  There is thus an inbuilt bias in the reporting of Europe and American power almost never gets a mention.  It wasn’t Europe which took us into the Iraq or Afghan wars.

Media and privacy

Still on the media but taking in the tabloids in particular, is the issue of privacy.  The phone hacking story revealed many parts of the British media to be acting outside the law.  People’s phones and emails were hacked, bank accounts blagged and for some celebrities and politicians, they were almost unable to communicate with anyone without the risk of their message being intercepted.  The full story can be read in Nick Davies’s book Hack Attack [1].  Aspects of this was illegal but recourse to the police was largely a waste of time since the police themselves were selling information to the tabloids or were afraid to tackle the media with whom they had an unsavoury relationship.  It has been argued that the phone hacking scandal only saw the light of day because of the HRA [2].  Regulation into interception was introduced because the UK fell foul of the ECHR.

The print media were feeling the pinch however with falling advertising revenues, fewer people buying newspapers, preferring the internet to gain access to stories, and increasing costs.  Much easier therefore to hack into celebrities’ phones to get a juicy front page.  They were free to do this because there was no law of privacy.  The HRA does provide some privacy protection and this poses a threat to their business models.  So parts of the media have a problem, both ideologically with its adherence to free market ideas and, its business model based on intrusion.  Europe is a threat to both these aspects, especially the latter from the HRA.

Thirdly is the concept of freedom and responsibility.  To be able to reach millions of people either in print or online is a huge responsibility, a responsibility to give as balanced a view as possible to impart the key facts.  Freedom of speech is a precious thing but it does also come with some responsibilities.

To end this section it would be unfair to blame all the media’s woes on the media themselves.  They are there to sell papers and, as with all forms of marketing, it is based on the principal of giving people what they want.  Clearly, they have picked up a mood or anti-Europeanism and they have provided the stories to match.  One can argue that they have failed to provide a balanced view.  They, however, might argue that the Independent newspaper was balanced, but is now only available on-line and the only other paper trying to give an even handed view is the Guardian which sells only a derisory number of copies.  If the public were interested in balance and wanted to read the benefits of EU membership they can do so.  They don’t.  The tabloids can fairly argue that they reflect the public’s view.  People buy their papers by the million, not the ones with balanced views. The Daily Mail has the world’s biggest on-line readership.

Politicians

Which brings us to the final point.  Against the tide of misinformation and negative stories about the HRA and Europe generally most of our politicians have either joined in or remained silent.  A few Lib Dems were proponents but they were reduced to a rump at the last election and are now scarcely a political force.  Whereas Ukip and Nigel Farage are rarely out of the news, the Lib Dems have all but disappeared off it.  Saying positive things about Europe to try and keep Britain within the EU came late to many of our politicians during the Referendum campaign and resulted in them not being believed anyway.  Anthony Lester refers to the ‘love-hate relationship’ between politicians and journalists in his book Five Ideas to Fight For  [3].

They are mutually dependent and yet proclaim their independence, each side claiming to represent the public interest better than the other.  (p159)

The media and politicians are both part of what has been termed the ‘Establishment’.  In his book The Establishment and how they get away with it [4] Owen Jones attempts a definition:

Today’s Establishment is made up – as it always has been – of powerful groups that need to protect their position in a democracy in which almost the entire adult population has the right to vote.  The Establishment represents an attempt on behalf of these groups to ‘manage’ democracy, to make sure it does not threaten their own interests.  (p4)

In a chapter entitled ‘Mediaocracy’ he describes how the media plays a role within this Establishment by focusing people’s ire on those at the bottom of society.  The success (if success be the right word) of this blame game could be seen in spades with the Brexit campaign and its focus on immigrants and Europe as the cause of many of our woes.  That immigrants contribute at least £2bn to the UK’s economy and are a mainstay of hospitals, the food industry, transport and much else is something you would not be aware of from much of the media.

It can be seen that the dislike of the HRA is the result of several forces.  The shift in power away from the elites and the provision ordinary people with rights is resented especially by those who have sense of being born to rule.  A right to privacy threatens those parts of the media whose business model depends on the wholesale intrusion into the lives of celebrities, sportsmen and women, and politicians (but never you notice other media folk).  An arrogance concerning the age of our legal system and its alleged superiority to the continental one makes us reluctant to accept correction or a different perspective from across the channel.  A loss of power and influence by media proprietors of the political establishment is also a factor where Europe more generally is concerned.  All these forces come together to result in an assault on the act.   Very little good is allowed to be said of it but plenty which is bad – whether true or not – can.  The HRA enabled a light to be shone into the Establishment and what was revealed was murky.  Is it any wonder they are so keen to see it gone?

This is the backdrop to the likely demise of the HRA.  And it seems little can be done to halt the process.  Good news stories rarely get into the media and are unlikely to be believed anyway.

Sources:

[1] Hack Attack, How the Truth Caught up with Rupert Murdoch, 2014, Nick Davies, Chatto & Windus

[2] A Magna Carta for all Humanity, 2015, Frances Klug, Routledge

[3] Five Ideas to Fight For, 2016, Anthony Lester, Oneworld

[4] The Establishment, and how the get away with it, 2014, Owen Jones, Allen Lane

On Liberty, 2015, Shami Chakrabarti, Penguin

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