European Convention on Human Rights

Lord Black of Brentwood Excerpts

Thursday 19th May 2011 Lords Chamber

[Lord Black of Brentwood]

My Lords, we are all indebted to the noble and learned Lord for securing this fascinating debate. I want to address the impact of the convention on press freedom and privacy. I declare an interest as chairman of the Press Standards Board of Finance, which funds the Press Complaints Commission and appoints its chairman, and as an executive director of the Telegraph Media Group.

As a starting point, I make it clear that I am an ardent admirer of the European convention, which as we have heard was established after the Second World War to limit the power of the state—an aim that I wholeheartedly support. I think it no coincidence that the British Member of Parliament guiding the drafting of the convention was a lawyer at Nuremberg, Sir David Maxwell Fyfe, who saw up close the horrors of totalitarianism. The noble and learned Lord, Lord Irvine, in his opening remarks, characterised the media, of which I am part, as wanting to destroy the Human Rights Act. Let me make it clear that I do not wish to see the Human Rights Act destroyed, not least because I see the great good that has come from it, which the noble Lord, Lord Pannick, outlined with his customary eloquence. But there are valid criticisms of it, and I want to make one or two today.

I am no lawyer, but I believe that the architects of the convention intended it to be used, in the words of the White Paper preceding the Human Rights Bill,

“to enable people to enforce their Convention rights against the State”,

not as a charter to regulate private dealings. If the convention has become the subject of some opprobrium in recent years since the passage of the Human Rights Act, it is because it is being deployed as it was never intended—to enforce those rights in private disputes. That is why real problems have now arisen, in particular with the developing privacy law.

There is an important point here, which has been made a number of times but which I want to reinforce. It is commonplace to attack judge-made privacy law and lay the blame for this at the door of the judiciary. That is wide of the mark, and I agree with the comments of the noble and learned Lord. It is not the courts that are responsible for the changing balance between privacy and freedom of expression; they are merely interpreting the law, which does not spring from some form of public policy ether but from the Human Rights Act and the manner in which it incorporated the European convention into our domestic law. Parliament is responsible for that—not the judges.

Indeed, those involved in scrutinising the Human Rights Act who understood the delicate ecology of personal privacy and freedom of expression warned of such consequences. My noble friend Lord Wakeham, for whom I used to work, speaking in Committee on this legislation, told this House that the Bill,

“would damage the freedom of the press and … inevitably introduce a privacy law”.—[Official Report, 24/11/1997; col. 771.]

He added specifically on the issue of injunctions, with his typical prescience,

“in privacy cases the courts would inevitably err on the side of caution and would not refuse an injunction, despite the fact that a newspaper said that there was a public interest defence”.—[Official Report, 24/11/1997; col. 773.]

The Government took those concerns to heart and amended the legislation, with Home Secretary Jack Straw committing that,

“we have no plans to introduce legislation creating a general law of privacy”,

adding, on prior restraint,

“interlocutory injunctions should be granted … only in the most exceptional of circumstances”.—[Official Report, Commons, 2/7/1998; col. 541.]

That it has not worked out that way is because Section 12 of the Act did not, I believe, deal explicitly enough with the mischief that was predicted and the way in which claimant lawyers have now abused the legislation with injunctions, sometimes anonymised injunctions, increasingly becoming the new weapon in the armoury of reputation management for some whose reputations do not deserve to be defended. I can only speculate what Sir David Maxwell Fyfe would think about the convention being used by cheating footballers to protect their commercial image.

I will not spend time on the injunction issue other than to say that one of the reasons Governments of all persuasions have opposed privacy laws is that they know how statutory legal frameworks are too slow to keep up with the breakneck speed of media development in a digital age. The internet has had a permanent, transformative and highly positive impact on the press, one aspect of which has been the huge propagation in the number of platforms available to it. When the Human Rights Act was put on to the statute book, Google, Twitter, Facebook and other social media were all far off in the future. The law has remained static but the media have changed, which is one of the reasons I believe Jack Straw talked during the passage of the Act about the need to preserve self-regulation—in an internet age, it will always be the only truly effective way to protect personal privacy in a manner that can keep up to date with the bewildering and rapid pace of media development.

Indeed, the Press Complaints Commission has proved highly adept at dealing with often highly complex privacy issues in a common-sense, unobtrusive way that does not raise all the problems of public court cases or secret injunctions. The noble Lord, Lord Prescott, treated us to his customary bashing of the PCC. I do not think that that is borne out by facts; you need only to look at issues such as harassment, a key aspect of personal privacy, where the PCC has been hugely successful in dealing with so-called “media scrums”. There is also the PCC’s vital but unsung pre-publication work, of which the noble Lord himself once made use, which helps to deliver privacy to many ordinary people without impinging on freedom of expression.

Those successes—and they are successes—help to bring perspective to this issue. It is easy to think that there is some sort of crisis of privacy in this country. Yes, there are problems with injunctions and the relationship of the law to social media, but the truth is that, while not perfect, and I accept that point, in recent years the British media have greatly improved the way in which they deal with personal privacy, particularly for ordinary people who could never afford to use the courts. The problems are at the margin and we do not need new legislation to deal with them; in my view, that would be the wrong course. Instead, one of the ways in which we could help to deal with the issue of injunctions would be for the courts to say to claimants, “There is a code incorporating your convention right to privacy that binds all newspapers, and a body that enforces it. Try that before coming to us”. That is the logic flowing from the very welcome European Court judgment in Mosley, which I hope the Secretary of State will ponder during the review that he is conducting.

I finish as I began. The European convention is something to be celebrated. One of the best ways that we can deal with the controversy surrounding it is for the Government to go back to Section 12 of the Act, look at the issues that gave rise to it, assess its efficacy and, if necessary, put a hand on the tiller to adjust it as I have suggested. I am sure that there is no more delicate hand than that of my noble friend the Minister to do just that.