Human Rights in the Media: Fear and Fetish

“They Offer You a Feature on Stockings and Suspenders Next to a Call for Stiffer Penalties for Sex Offenders”: Do We Learn More About the Media Than about Human Rights from Tabloid Coverage of Human Rights Stories?

Last week, in responding to a letter from the House of Lords EU Justice Sub-Committee about references to the ECHR in the Political Declaration, the Government failed to give assurances that it will not repeal or replace the Human Rights Act. The Parliamentary Under-Secretary of State for Justice simply re-asserted the 2017 manifesto pledge, not to do so while Brexit is underway: it was right that we “wait until the process of leaving the EU concludes before considering the matter further in the full knowledge of the new constitutional landscape.” The letter, from 4^th January, is here. As the Sub-Committee pointed out, this is in stark contrast to its proclaimed commitment to ‘shared values of respect for human rights and fundamental freedoms’.

Fully leaving the EU – in March 2021, if there is a two-year transition – then brings the double whammy, removal of EU Charter rights, and the possibility of revamping and dilution of the HRA. The Government did confirm its commitment to the ECHR, setting out that there no plans to withdraw from the ECHR. Whatever debates are to be had over the HRA – its operative scheme or its scope and extent – sensibly these should be informed. A timely new book – published this week, on 24^th January, by Routledge – poses questions about the accuracy of media coverage. Human Rights in the Media: Fear and Fetish, edited by Michelle Farrell, Eleanor Drywood, and Edel Hughes stems from a conference organised by the School of Law and Social Justice at the University of Liverpool a few years ago on media coverage of human rights cases and issues. The content, including a chapter by me, are below:-

My chapter builds on some previous work, contained in this book, published by Hart in 2015, but includes two novel aspects. First, it offers a semiotic, Barthesian decoding of the following, by now infamous, red top front page, noting the way the paper portrays human rights as something not currently of value for individuals like you and me – all those on the right of the picture, the silent majority, are identified by first names (and ages) to facilitate that assimilation – but as something that protects people who are distinguished only by some collective shared criminal identity, necessarily demarcating them as outsiders, as having rejected society and its norms.Secondly, it discusses the results of an empirical content study that I conducted into coverage by the Daily Mail of one, hotly contested human rights issue: the (non-)deportation of foreign criminals, following conviction, on human rights grounds. Of 35 stories in the paper over a two-year period about named, identifiable individuals, just over 88% of them showed them being able to avoid deportation – a success rate for the Home Secretary of just over 11%. Official Home Office data for an overlapping three-year period (admittedly now several years ago) showed almost the opposite: on average, the Home Secretary succeeded in 81% of such cases: in only  19% of cases was the FNO (foreign national offender) able to remain in the UK. At the time the chapter was written, The Sun and the Daily Mail had a combined readership of 3.3m, and the Mail Online 14.3m hits. It is a massive problem, one on which I gave evidence to the JCHR over the summer as part of its “Enforcing Human Rights” inquiry since it is not a problem that can easily be solved by a regulator. It is not that the reporting is inaccurate or false – does it conform to independent records? – but is rather, as the communications theorist Dennis McQuail put it, one of completeness: are the facts sufficient to constitute an adequate account? The chapter includes further empirical research on the (non-) reporting of ECHR judgments, as well as discussion of various techniques of distortion that I identified in that earlier book. These are pre-emption (reporting cases too early in their life cycle but portraying them as establishing a binding ruling); prominence; partiality (in sources); and phrasing of stories, alongside three new ones:  lies, damned lies and statistics; repetition for reinforcement; and what I term an Unverfremdungseffekt, a reversal of Bertolt Brecht dramaturgical ideas about alienation. The chapter concludes  that “the least the HRA deserves is a clean fair fight – not one encumbered by misreporting, misconception, and the misconstruction of reality.”

TOMORROW’S CHIP PAPER – THE TABLOIDS & THE HUMAN RIGHTS ACT

Yesterday I gave paper at the Newcastle Law School, part of some ongoing work looking at media representations of human rights cases and issues. The paper’s title was “All wrapped up in tomorrow’s chip paper – what do we learn about the reporting of human rights by British newspapers?”. The abstract is below

 In this short blog, I am not planning to set out the paper in full but thought it might be a helpful contribution to the debate about possible repeal of the HRA to set out some of the findings I have made. In particular, this shows how skewed Daily Mail reporting in relation to deportation of foreign criminals is. The paper does not argue why this might be but simply asserts that regular readers of The Daily Mail will have a very different idea of the likelihood of a foreign criminal being deported at the end of the their sentence that is the reality. In short, of all such stories in the paper (or, in fact and more accurately on-line) for a one year period (ending last week) – and there were 31 – 83.8% indicated very clearly that the Home Secretary’s attempt to deport was defeated on human rights grounds. This compares to an historic four-year mean (2009-2012) of 17.6% success rate for claimants, based on the Home Office’s own data. In fact if we included the massive drop in the %age success rate for claimants in both 2013 and 2014 (at 5.4% and 0.17% respectively) the mean is much lower, but there are good reasons to exclude these. Put another way, the regular reader of The Daily Mail – assuming they both believe the stories and digest them into a probability! – would think of every 100 attempts to deport, the Home Secretary wins a shade under 17. In fact, the reverse is true: of every 100 deportations attempted by the Home Secretary, foreign criminals successfully oppose only, on average, about 17. The Home Office data – in the form of a Parliamentary answer to a question asked by new MoJ Minister, in charge of HRA repeal, Dominic Raab MP – is set out below

As the manifestos were published in the run up to the election, I blogged about the fact that the Tories had placed their pledge about repealing the HRA in the section on crime, specifically about victims of crime (alongside placing it in the section on the EU) – and not in that section of the manifesto devoted to constitutional matters, or citizen and state. What seemed a bit of a puzzle now starts to make sense. Reason replaced by rhetoric backed by the reproduction of unreality – the sort of thing that leads to moral panic, to a clamour “to do something”. Well that something – a British Bill of Rights and loosening of ties to Strasbourg – is now well and truly upon us. Let’s hope that tomorrow’s chip paper is not the parchment of the HRA

SAME OLD, SAME OLD – THE CONSERVATIVE MANIFESTO AND THEIR PLANS FOR THE HUMAN RIGHTS ACT

In yesterday’s Conservative manifesto, we finally see what the party proposes to do about domestic human rights protection if re-elected as a majority Government in a few weeks time. If they are forced to form a coalition with the Lib Dems, the plans are likely to fall on barren ground, as they have since 2010. Though the LibDem manifesto is not quite out, at the time of writing, they have made clear their commitment to the Human Rights Act throughout, though with some opacity in recent weeks: see this speech by LibDem Justice Minister Simon Hughes at Kings College London a few weeks back. Thanks to James Lee for pointing me towards it.

Mark Elliott provided his usual clear analysis of the Conservative plans while the ink was still wet on the manifesto yesterday and I don’t plan to repeat much of that. It seems to me though that one further point is worth making.

This relates to the location of the commitment in the manifesto. It is not to be found in a section on the constitution, or on rights or on the citizen or on democracy. In its 2010 “Invitation to Join the Government of Britain” (which I politely declined) the commitment to replace the HRA with a British Bill of Rights was in the “Change Politics” section. Labour’s 2015 commitment to retain the HRA is in the section of the manifesto headed “Reforming government to give more power to people…”. The Greens have placed their same commitment in “Government and People”.

Instead we find the HRA, the European Convention and the Strasbourg Court in two places. The first locates the discussion in a section on “Fighting Crime and Standing up for Victims”. The second in “Real Change in our Relationship with the European Union”. This tells us much.

Either there is no one in the Conservative Party with the responsibility for the drafting and checking, and ultimately approval, of the manifesto who knows the Convention (and thus the HRA) has nothing to do with the EU or they do, but simply decided, knowingly to include it there anyway. The latter means they deserve our total contempt – seeking to elide and to confuse, the tired old, same old “Europe is singularly bad, let’s get out of both”, pandering to a narrative of misplaced fear, linking it in the minds of voters to the bogeyman of EU immigration. The former means they simply do not deserve our vote – they cannot be trusted to run HMG Foreign Policy if they do not know the scope of what falls within its aegis. It is both frightening and woeful in equal measure, a mistake I seek to drum out of the minds of my 1^st year law students, not one we’d expect to see in document seeking our consent to being governed.

Locating the plans for repeal of the HRA within a narrative about crime and victims is equally mendacious – and about a subtle as a brick lobbed through a window before a burglary. It is speaks to another discourse of fear – not one premised on unlimited immigration, of Romanians coming over and taking all our jobs, schools, hospitals, lottery tickets, car parking places, spots on the beach etc etc – but a fear of being attacked, of being subject to terrorism, of being robbed. It is singularly narrow and comprehensively mistaken in its assessment of the proper role and effect of the HRA over the past fifteen years or so.

While it is undoubtedly true that the ECHR, and thus the HRA, confers certain rights on criminal suspects – oh, I don’t know let’s call them “fair trial rights” – in Article 6, primarily, it is nonsense to think that this is some alien invasion. One of the few remaining aspects of Magna Carta still “on the books” relates to criminal trials and the dispensing of justice, that it should not be sold, denied or deferred. We have seen too that the common law protects “criminals” most recently by the Supreme Court in Osborn v Parole Board, requiring that prisoners have an oral hearing before release decisions are taken. Furthermore, there has been a clear and marked expansion of victims’ rights using the HRA itself: absent Article 2, there would be no right to a McCann independent investigation into deaths – the common law not requiring such; only by virtue of the HRA – and Arts 3 and 8 – have victims of crime been able to seek accountability from the police for their failure to investigate and prevent crime, as the High Court held in DSD last year, the so-called “black cab rapist case”; lastly, it is the HRA that has allowed victims of crime to challenge prosecution decisions by the CPS (see last month’s NXB decision as an example, albeit lost on the application of the law).

The case that the HRA has led to the citizens of the UK being regularly and continuously being exposed to the repeated threats from criminals we cannot deport after release has being hyperinflated by media coverage, or by certain elements of it. An earlier post of mine on this blog related some empirical research I had conducted. In broad terms, readers of many UK newspapers, both tabloid and broadsheet, are painted at best half a picture and more likely a totally different picture of the reality of human rights cases and litigation both domestically and before Strasbourg. That research showed that large numbers of cases where the UK succeeded before the European Court simply never made the press – skewing us to think the UK largely lost. More pertinently for the instant point, I studied a year’s worth of Daily Mail coverage of the deportations of foreign criminals. I found the paper massively over-reported the number who successfully avoid deportation. Of 21 stories for that year only two were about or told the tale of the Home Secretary’s success. The other 19 were in various guises how the UK was forced to let them remain. This portrays a success rate for the applicants of some 91.5%. Even on The Daily Mail’s own figures the reality is a success rate of about 33% and the Home Office’s own data (admittedly for the previous year) indicated a success rate of about 24%. It is no wonder that readers of The Daily Mail believe the only alternatives to a life bedevilled by foreign criminals (coming over here doing our own out of a job) are to remain indoors and lock all the doors, or to repeal the HRA.

My last point is the dog that didn’t bark. With the pledge situated in those two sections, readers of the manifesto, will not know about the everyday strengths of the HRA, how it has beyond any doubt improved the lives of many, many of our fellow citizens:

• the elderly couple who used the HRA to ensure that they remained together, housed in the same old people’s home;
• Beth Warren who is now able to have longer time than the statutory framework allowed to decide whether or not she’d like to use her deceased partner’s sperm to found a family;
• the parents of Joanna Michael, able to use Article 2 to found a claim against the police who failed to respond quickly enough to their daughter’s 999 call such that she was murdered by her partner – and when at common law the Supreme Court upheld police immunity from suit;
• the relatives of those who died at the Mid-Staffs hospital, able to use the HRA first to persuade the government to hold a public inquiry and then to obtain compensation

More widely speaking, in 2010 the Conservatives framed their pledge about HRA repeal with this: it would be done in order to “protect our freedoms from state encroachment”. Five years is a long time in government. From its location in the manifesto now we can only conclude that the Conservatives clearly do not currently see the HRA or human rights more generally as being a constitutional issue – as being about the control of government, about limiting the sometimes natural majoritarian (and populist) excesses of Parliament, and as being about the consensual relationship between citizens and state under which the basics of both human existence and human flourishing are so foundational as to be beyond peradventure. If a portrait can paint a thousand words…

Four legs good – two legs just as good, no better, no worse

Far too much ink has been spilled in the last few days, considering – dissecting? – Chris Grayling’s plans for reform of the UK’s human rights law. Blogs by Mark Elliott, Carl Gardner, Adam Wagner Angela Patrick (of JUSTICE) and Alison Young would be but five looking at the legal illiteracy, simple fallacies and distortion. The most recent tweets and posts have been on Conservative HQ seeming dissembling over where on-line the proposals could be found.

For example, it is simply not the case (p.4 of the policy proposals) that the Misuse of Drugs Act (and here I assume they mean the 1971 Act) “provides the defence for the defendant to prove, on the balance of probabilities, that they did not know, suspect or have reason to suspect that what they had was an illegal drug.” Section 5(4) and indeed s.28(3) are absolutely silent on the standard – and indeed the burden – of proof; that is the point. To have read such words as occurred in Lambert (again, assuming the case they are referring to) would have been a gross distortion and almost certainly an excess of the interpretative power in s.3 of the HRA –and thus an arguably illegitimate power grab. Instead, the House of Lords was able to overturn many other common law cases interpreting the word “prove” in a way that was more favourable to defendants, and in keeping with Article 6.

That though is not my main concern in this blog. Instead, I plan to look at the claim – in the accompanying press release, not the actual 8-page document – that

No one would be able to claim human rights to allow them to step outside the law that applies to all other citizens, for example a group of travellers claiming the right to family life to breach planning laws.

 First, at a normative level, this obscures the fact that human rights are – or perhaps should be – avowedly anti-majoritarian, something I mentioned in a couple of posts last week. It is the task of human rights defenders to counter objections to the universality of rights – that somehow there are those deserving of protection and others who are not (which of course chimes with the theme of responsibilities in the proposals). If that view holds sway, you can bet that the targets of abuses – devoid then of protection – will be the usual suspects. Human rights protection is for all, yes, but especially for those on the margins. In short, human rights laws, it can be argued, are there and are needed precisely to exempt some people –some groups perhaps – from the bite of laws approved by the majority.

Secondly, it will simply unravel if the Tories seek to provide some flesh. Yes, travellers are an easy target – of course, it would be argued, ordinary planning laws should bind them as much as it binds “hard working families” but would we – rather would they – be so sanguine, so keen to tell Beth Warren that she should not be exempt from the normal time limits for using her late husband’s sperm? The HFEA’s decision to stick to the statutory limit was ruled an unlawful – i.e. disproportionate – breach of Mrs Warren’s right to family life under Article 8. Section 3 of the HRA was used to read the legislation (s.14 of the Human Fertilisation and Embryology Authority Act 1990) in a way to assist, the wording of which we might reasonably conclude Parliament had already sought to balance the relevant competing tensions, interests and concerns. Of course, it helps that Mrs Warren is in Chomskyan terms, a worthy victim. What about mothers and fathers – now safe in the knowledge that the state must bear the costs of some aspects of private family law cases as a result of Article 6 and 8? That is the result of the decision taken by Munby P in Q v Q this summer but is this not, under the guise of human rights law, a different, and enhanced, outcome than the ordinary law that applies to all would seem to predict, exactly what the Tory proposals are so damning about? Last, what would the Tories say to Gary McKinnon – stepping outside the ordinary law of extradition that applies too all, unless – like him – you happen to be such a great suicide risk that to send you to face trial in the USA would likely amount to a breach of your human rights.

So the Tory policy is not only intellectually suspect but hypocritical, a divide and rule policy for temporary political advantage, and (certain) red top approval. After all, the Home Secretary’s decision in respect of McKinnon was warmly lauded by the Daily Mail seemingly without any volte face or even recognition that this was a departure from their usual line on criminal deportations. On the topic of barefaced chutzpah, let us leave it to The Sun, which this week lay claim to greater journalistic protection – having previously campaigned long and hard to deny human rights to others. What better example of someone seeking to step outside the law. Someone needs to let Chris Grayling know sharpish. Gotcha indeed!

 

A few thoughts about Lord Judge judging judges

In today’s Daily Mail, former Lord Chief Justice engage again in hostile criticism of the Strasbourg Court originally made in the Bar Council magazine Counsel – and the aggrandising of power (my words, not his) by unelected judges there, over and above democratically elected Parliaments.

In this short post I plan to offer a few rejoinders, as the debate heats up.

He sets out his view that “the Human Rights Act did not give Strasbourg the right to impose its rule on Britain.” He’s quite right. It’s a domestic statute. The Act, passed in 1998, has nothing to say on the binding nature of the Convention, and more specifically Strasbourg law or judgments. It is true that s.2 requires judges to “take account” of such judgments – and there has been much ink spilled over whether this needs reform, to reclaim supremacy for the Supreme Court. The reason though that the UK is bound to implement European Court judgments in cases against us at least is Article 46 of the ECHR itself: “High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.” Thus the state is bound as a result of its freely chosen and entered into international law treaty obligations in 1951 (in the second short-lived Attlee administration). That is we are – still – obliged to give some prisoners the vote i.e. we are required no longer to have an absolute voting ban that catches all, no matter the crime committed or length of sentence. It is simply arbitrary to debar or allow citizens to vote dependent solely on whether they happen to be in prison on day X.

That though is a digression. The point is that the fault lies at the door of the ECHR, not the HRA. Of course, both are under attack from certain elements in the Tory/UKIP party but a proper, and informed debate on Britain’s role in and relationship to the Council of Europe deserves better. Are we really going to join the club (current membership 1, Belarus) as the only European states not in it? The words of Groucho Marx spring to mind.

 

Another complaint is the unelected nature of the Strasbourg Court. This is simply not true. Unlike his UK brethren, European Court judges are elected by the Parliamentary Assembly of the Council of Europe and I’m very grateful to Andrew Cutting of the Council’s Brussels office for this link which explains it a little more.

Of course, UK judges do not need to be elected, it would be argued, as they are always subject to the overriding democratic power of the Westminster Parliament. That to me seems to be a little off the point in this context. Yes, Parliamentary Sovereignty means that whatever decision a judge reaches is subject to possible overturn by MPs but that only obtains when legislation is the subject of legal challenge. If instead judges are holding exercises of ministerial discretion to be unlawful – on standard judicial review grounds – as with last week’s legal aid challenge there is no question of Parliament’s sovereignty being impugned. In short, it seems a little rich for a British judge to complain about the powers of unelected judges when they have been not simply silent but positively approving of the expansion of judicial controls – sometimes even praying in aid the nebulous common law constitution, which – by definition – must lack any form of democratic imprimatur.

 

Last, a further implicit complaint is the undemocratic nature of human rights, something made explicit as a criticism by Chris Grayling late last year: “The European Court of Human Rights has lost its legitimacy in the UK by doing things that frankly the people of this country and their elected representatives do not want.” Surely that’s the point – if they were subject to the vicissitudes of the 51% temporarily constructed, they’d hardly be fundamental things at all, more the benefits of majoritarian largesse, at the beck and call of whoever was in power. You don’t have to be Rawls or Dworkin to think that’s nonsense on stilts!

BEWARE GRAYLING BEARING GIFTS

It feels a little like Christmas Eve today – anticipating what tomorrow will bring. For many though the Tory’s likely announcement of their plan for the Human Rights Act is going to resemble the revelation of an ill-fitting hand-knitted garish jumper, not the delights of a Breaking Bad boxset.

This short post is not going to be an encyclopaedic traverse of the terrain of domestic human rights protection. Instead though it seemed sensible to offer a couple of thoughts that could be borne in mind in the weeks and months of struggle ahead, as we make our way to May 2015. It is very unlikely to say anything new but – as we shall see – simple repetition is a tactic of opponents of the HRA, oftentimes of demonstrably untrue assertions, so if you can’t beat them…

First, though the plans have only been hinted at in recent months, it is clear the Tories want to rebalance the relationship between the UK and the Council of Europe/Strasbourg Court. One approach, floated by Chris Grayling over the weekend is that the “European Court of Human Rights will no longer be able to overrule British courts”. It is hard to see how this can happen. It is legally impossible for the Tories to legislate domestically to instruct an international supervisory court, and thus the other member states, how to approach cases that come before it. Grayling is blowing in the wind here, but what is symptomatic of the debate from the right, the truth – or legal reality – has long been the first casualty. In the same way, Westminster cannot pass a law revising the accepted meaning of use of lawful force under the UN Charter, and expect any other state to pay a blind bit of notice. UK courts of course would be required to do so – and perhaps this is what Grayling really meant, albeit that he tried to describe it in a legally illiterate manner. Doing so would mean that the UK – using that example – would have perhaps an entirely different definition or understanding of lawful force to any other. Using the HRA as our example, it would mean altering s.2 of the HRA. This is the option that Carl Gardner thinks will be announced tomorrow – and it has a long pedigree as a policy option, and not just on the right. Sadiq Khan has intimated the same approach for Labour, again (interestingly) in a Telegraph interview over the summer. There is something understandable to this but it is hard to see how it might be framed: the current wording was deliberately framed as not to bind British judges. Indeed a stronger adjuration was rejected. Yet judges have – or rather had – taken the view that s.2 in general required what has often been described as a mirror, that we mirror Strasbourg law so that UK law is no more, no less the same. Recent years have seen noticeable declarations of departure – we might think of Horncastle as a good example. The result there of failing to follow Strasbourg jurisprudence on admitting certain hearsay evidence was that in the next case to come before it, the ECtHR very clearly shifted position. In short what form of words can be latched upon to give this clear direction to judges?

That though is a soluble problem. It does however miss another counter: that the change in heart on the part of the European Court was the result of some form of inter-curial dialogue – and thus close involvement between the UK and Europe – something long advocated by Dominic Grieve as a strength of the current framework but, as Carl Gardner notes today, something that is both only long-term in result and unclaimable by an one party. It is therefore unpalatable in today’s “something must be done about human rights” politics. It also underplays, ignores, the very clear shift in the approach of the Strasbourg Court – far more deferential, far more of a subsidiary role in recent years respectful of and mindful towards elected representatives. This is reasonably well-documented, and we might think of Animal Defenders, von Hannover No 2 and this more recent case against the UK, the RMT decision from April this year. There, the UK’s ban on secondary industrial action was held not to violate article 11 and the Court said this (at [99])

In the sphere of social and economic policy, which must be taken to include a country’s industrial relations policy, the Court will generally respect the legislature’s policy choice unless it is “manifestly without reasonable foundation”. Moreover, the Court has recognised the “special weight” to be accorded to the role of the domestic policy-maker in matters of general policy on which opinions within a democratic society may reasonably differ widely The ban on secondary action has remained intact for over twenty years, notwithstanding two changes of government during that time. This denotes a democratic consensus in support of it, and an acceptance of the reasons for it, which span a broad spectrum of political opinion in the United Kingdom. These considerations lead the Court to conclude that in their assessment of how the broader public interest is best served in their country in the often charged political, social and economic context of industrial relations, the domestic legislative authorities relied on reasons that were both relevant and sufficient for the purposes of Article 11.

As I put it in an earlier UKCLA blog post in each “we can – if not clearly and explicitly – see the Court playing a political role, seeking to staunch national discontent with judgments would appear to be more politically welcome. This has simply been lost in the debate, and lost too with Grieve’s sacking. Is it coincidence that there was not one single newspaper report of the Government’s success in the RMT case?

 

Second, there is in essence something inherently duplicitous in the Tory’s approach: on one hand, the aim of reform and change is to “make the Supreme Court supreme” and on the other, stressing that this rebalancing will make the protection of human rights in the UK a more democratic endeavour, and thus something to be aspired to. You can either have judicial power or you can have democratic power – someone has the last word. Unless Grayling is also planning to tamper with the fundamental constitutional principle of Parliamentary Sovereignty – in which case many of us this week will urgently have to rewrite 1^st year lecture handouts – the Supreme Court will not become sovereign. To configure it so that it has more sovereignty than Grayling considers it has now is again a legal falsity lost on a non-lawyer. It is not a divisible concept, certainly not something you can have more or less of. It is duplicitous too as – again as many have noted – without properly addressing the place of EU Law within the UK’s judicial order (and of course renegotiation, referendum and withdrawal are not unimaginable) whatever view we take of the ECHR, the human rights principles of the CJEU and the growing Charter jurisprudence mean that whatever is done in relationship to Strasbourg will offer a false dawn.

This post is not the place to go into the whys and wherefores of this debate – to which I & many, many others have contributed over the years. Here I agree with Gavin Phillipson: there is now an urgent need to debate and thrash around the appropriate constitutional balance between elected representatives and the judicial arm. We cannot avoid it. As he writes,

if we want to defend the ECHR as it is, we need to come up with clear arguments as to why the Strasbourg court should   retain the final word on questions of human rights in Europe.

I would add just this – though this is not intended to be a Damescene moment: democracy is essentially majoritarian, that’s how it works. I often say to my undergraduate students, people like me – white, male middle aged, university educated professional, middle class – do not need rights. I can get MPs to do my dirty work for me if I need some sort of favour or special treatment. Minorities, by whatever description, by definition cannot – they simply cannot muster the power. If they could, they’d be a majority. Simplistic I accept – but a truth lurks. Human rights are about protecting often powerless people from the worst excesses of the exercise of political power by the rest. You cannot give greater protection by handing it all over, or back, to Parliament. This is not to accept that there is not a key role for Westminster, nor indeed for courts and judges – unravelling that is the next project for human rights constitutional lawyers – but simply to offer the view that tarting the proposals up in the language of democracy offers voters a misconceived view of what human rights are and should be about.

 

That does though make sense. The real thrust has been a media narrative of undesirables claiming rights – most often foreign criminals claiming the right to remain using Article 8. I have conducted my own empirical research (and blogged last week) and come to the conclusion that the extent of that is simply a fabrication. Readers of The Daily Mail – from the frequency with which stories are reported – would be under the impression that the success rate (i.e. those who manage not to be deported) is about 92%. Of 21 stories in that paper that were on foreign criminal deportations, 19 were about those in whose favour the courts had found. The reality is very different. Even the Mail itself has been reporting a success rate of a third – though using that to show a yearly 50% increase – while Home Office figures (admittedly for 2012) show a success rate for applicants of 24%. There is also a continual mantra linking “murderers and rapists” together – again, as I discovered, in 27 domestic human rights stories in the past year, almost all in the context of prisoners’ rights/deportation. It is easy to see a tsunami of moral panic building up, with such groups becoming the modern day folk devils, replacing Stan Cohen’s mods and rockers of the 1960s. This is reinforced – again as my research shows – by worthier victims (using the label applied by Herman and Chomsky in Manufacturing Consent) not needing to claim their human rights at all, or rather newspaper coverage simply omitting any mention of human rights as the reason for success in court. The successful claim by Beth Warren to use the sperm of her late husband “out of time” was based on her Article 8 right to family life yet readers of the Telegraph would have had no clue.

 

There is much more to the said about the HRA and its important place in our domestic order. David Green has quite properly been stressing Lord Bingham’s speech in which he rhetorically asks which of the many listed rights in the ECHR are its opponents against. It is, of course as is well-known, the product largely of British involvement though – to be fair – it would be an ill-conceived argument to focus solely on the very words of a document from 60 years ago, without even a nod to how those words have been interpreted. We could though, to take another Tory argument – that there is simply no authority for the expansion and development of the Convention, the living instrument approach point – as Nuala Mole did at a conference last week to the preamble of the ECHR

 “Considering that the aim of the Council of Europe is the achievement of greater unity between its members and that one of the methods by which that aim is to be pursued is the maintenance and further realisation of Human Rights and Fundamental Freedoms” (my italics).

Instead, let us for now concentrate on what tomorrow brings and timeo Danaos et dona ferentes – beware Greeks bearing gifts.

“They offer you a feature on stockings and suspenders next to a call for stiffer penalties for sex offenders: do we learn more about the media than about human rights from tabloid coverage of human rights?”

Last week, I spoke at the University of Liverpool, at a one-day conference Human Rights in the UK Media: Representation and Reality, organised by the Centre for Law and Social Justice. The twenty or so papers made for a fascinating day, with contributions from academic lawyers, lawyers in practice, journalists, communications theorists and from NGOs.

The slides from my talk are here (LIVERPOOL PRESENTATION SEPT 2014 ) and I hope to write a much fuller paper in due course. The title comes from “It Says Here” by the Bard of Barking, Billy Bragg, and as I made my way on the train, realised it was thirty years ago almost to the day that I used that same song and lyrics to end a prefects’ sixth form assembly on the power of the press – to be told pointedly that that would be enough politics, thank you!

 

This Liverpool paper marks several months work – with another presented at Leicester in May (to be part of an edited collection I think) – but the start of much more empirical work to come. It seeks to show how certain elements of the media – and the focus is on The Daily Mail, and to a lesser extent The Daily Telegraph – end up misreporting human rights stories, usually cases. It doesn’t offer explanations for why that might be – but it does conclude that it is, if not dangerous, then corrosive especially in times when the future of the HRA is not secure. Should repeal, reform or change be based on such skewed misinformation which drives (in all likelihood) public misconceptions? The paper does ask where this leaves the right of free speech – or media freedom – at least certain elements of it. If the rationale is an informed electorate and vibrant democracy, it is hard to see how such reporting justifies the vaunted position it occupies in the public sphere – but I hasten to add this element is by no means fully thought through!

 

The paper does offer several empirical insights – not all, it must be confessed, fully verifiable or inductive. Many are illustrative of a general concern the paper makes rather than being a demonstrable truth. Some though are: the paper shows that the Daily Mail massively over-reports the number of foreign criminals who successful avoid deportation. Of 21 stories in the Mail on-line for the year 7 July 2013 – 6 July 2014 about foreign criminals) searching “human rights act” deportation) only two were about or told the tale of the Home Secretary’s success. The other 19 were in various guises how the UK was forced to let them remain, a success rate for the applicants of some 91.5%. The reality, even on the Daily Mail’s own figures – from an FoI request – is that only 1/3 were not deported, their point being that this was an annual increase in the failure rate of 47%. The government’s data – admittedly hard to track down and for two years ago – show that 76% of foreign national offenders leaving detention in the six months 1 April to 30 September 2012 were removed i.e. a success rate for applicants of 24%. In short, Daily Mail readers are offered a very different – and I would argue false – impression of the chances of using Article 8 to defend deportation proceedings.

 

The paper offers examples of reporting that is simply false – the outcomes of legal hearings not being some contested and contestable reality, some socially constructed truth – and of distortions, drawing on McQuail (1992) who presents three criteria by which we may assess media bias: factualness (or opinion); accuracy; and completeness (Media Performance: Mass Communication and the Public Interest, London, Sage). It provides examples of the techniques of distortion – by omitting coverage altogether (again drawing on previous research noted in this UKCLA blog of mine where I depict the paucity of coverage of successful UK Strasbourg cases drawing on just this past calendar year) and by commission: through premature reporting (of cases not yet and perhaps never to be heard), through prominence of the story, through partiality in selection of sources, and phrasing of copy.

 

The paper concludes by offering perspectives drawn from media/communications theory, a whole new departure for me – so there is some content analysis (the Strasbourg silence for example) as well as a nod to semiotics – the Mail regularly talks of “human rights” as if they are as of doubtful status as the Loch Ness monster – and suggests the various discourses, or wider narratives at play.

 

 

Any thoughts or comments let me know.