Leveson isn’t a threat to human rights – not adopting his proposals would be

There was a time – many years ago – when the National Council for Civil Liberties – or Liberty as it is now called – used to have constant debates at its annual general meeting about whether to argue in favour of the legal protection of race hate speech. There were two points of view as to how extreme a view the organisation should take of the right to free speech. All that was decades ago. But it does illustrate the problems that libertarians sometimes encounter when faced with calls for proportionate restrictions on what can be said or written about people as a means of protecting the vulnerable.

I have read an article in the Mail on Sunday which reports that Shami Chakrabarti of Liberty has criticised the Labour leader Ed Miliband for endorsing the proposals made by Lord Justice Leveson for future regulation of the press, and attributes to her the view that the implementation of those proposals in full would in some way undermine or infringe the right to freedom of expression as protected by article 10 of the European convention on human rights.

I have the greatest of respect for Shami, and for Liberty, and we agree on many things. But quite frankly I was startled by the suggestion that has been attributed to her, which is so obviously wrong that I was driven to wonder whether she has been misquoted, something she is indeed now claiming – last night, she published a statement clarifying her position.

I have now had an opportunity to study Leveson’s proposals in detail. Miliband is quite right. There is no question whatsoever of these proposals violating the right to free expression as protected in the convention. Almost all European states have much stronger privacy laws than this country, and are constantly shocked by the failure of UK law to protect the right to privacy against press intrusion into the personal lives of even the rich and famous – never mind the hacking of the phones, and the publication of private diaries, of people who have been the victims of terrible crimes such as appears to have happened in the Milly Dowler and Kate McCann cases.

Arguments such as the one that has been attributed, I hope wrongly, to Shami in the Mail on Sunday are the sort of nonsense that gives human rights a bad name with the public. The European convention is not there to protect the powerful interests of media barons, or profits of newspaper owners obtained by committing criminal offences. 

It is my clear view that the legal opinion attributed to Shami is wrong as a matter of law. In fact, it is the very opposite of the correct legal analysis.

Of course a free press and protection of the right to freedom of expression are essential to the health of a democracy. Investigative journalism is a vital means of exposing serious wrongdoing and holding public authorities to account.

Despite some media claims to the contrary, all the lawyers and judges working in this field understand very well indeed that genuine public interest journalism is the lifeblood of democracy. And we know that sometimes that includes the right to be wrong.

As Leveson observed to Michael Gove, he doesn’t need jejune lessons from an education minister on the importance of free speech.

The plain fact is that Leveson’s recommendations are no threat whatsoever to genuine investigative reporting – reporting that is aimed at exposing wrongdoing in the public interest. If they were, then I would also oppose them, because muzzling the press from reporting the wrongdoing of politicians and the powerful is the route to tyranny. If any lawyer makes the claim that these careful proposals undermine free speech then, in my opinion, they are deluded.

The right to free expression carries responsibilities.

The press in the UK have great resources at their disposal, and some tabloid newspapers wield great power: the power to wreck people’s lives for no better reason than to make money.

Other European lawyers and judges have looked on in horror as the Leveson evidence has emerged. They cannot believe the UK would allow these gross intrusions into the right to privacy to carry on.

In my view, it is not the implementation of these proposals that would lead to violations of human rights law but a failure to implement them in full. There needs to be a light-touch statutory underpinning to this new independent body in order to protect the legal right to privacy of those whose personal lives, phone calls, and private communications have been illegally invaded.

‘The public knows what is going on here.

‘Most ordinary people believe that the real reason some members of the Conservative party, including the prime minister, have refused to accept the advice they asked Leveson to provide to the nation is not because of a pure concern about maintaining a free press to expose political wrongdoing in the public interest. It is because they rely on the newspaper editors to support their policies and endorse them at election time.

‘They want to carry on having tea together, laughing out loud in their private texts, going horse riding together. And they want to keep well-oiled the revolving door that sees prominent journalists from Murdoch owned newspapers becoming politicians and ministers. Gove is a case in point.’

Miliband has done a very brave thing by taking a decisive stance on this issue, even at the risk of making himself unpopular with the press.

The politicians who oppose Leveson will be able to rely on the support of the media in future.

The whole point of Leveson was to expose this sort of patronage and bring it to an end. And yet by giving in to pressure from the papers the prime minister and his Conservative cabinet colleagues are doing exactly the same thing.

Lord Justice Leveson is right.

Ben Emmerson QC reported to the Human Rights Commission on Media Intrusion. Hugh Tomlinson QC is a member of the Inforrm Committee 

The Guardian