Human Rights Act

¶Introduction

¶3.1 The Long Title of the Human Rights Act 1998 (the HRA) states that it is designed to "give further

effect to rights and freedoms guaranteed under the European Convention on Human Rights". In the preface to the White Paper "Rights Brought Home", the Prime Minister explained that the HRA was intended to "give people in the UK opportunities to enforce their rights under the European Convention in British courts rather than having to incur the cost and delay of taking a case to the European Court of Human Rights".119

¶3.2 A great deal has been written about the HRA, the debates in Parliament when the Bill was

being passed, and precisely what it was intended to achieve. No such exercise is required in this context. This section of the Report seeks solely to ascertain the concerns of the press during the passage of the Bill through Parliament, and to set out the basis on which any amendments and concessions were made following lobbying efforts carried out directly or on their behalf.

¶3.3 It is clear that the initial publication of the Human Rights Bill by the incoming Labour

¶Government led to substantial concerns being expressed by most sections of the press.

¶3.4 First, there was a general concern about a "judge-made" privacy law which the Human Rights

Act in general might lead to. Initially at least, the press argued that in order to avoid this, they should be excluded from the ambit of the Human Rights Act entirely.

¶I 3.5 Second, but linked to the general concern, a number of specific concerns were expressed,

in particular about pre-action restraint in privacy cases. Representations were made to the effect that pre-trial injunctions should be granted in privacy cases in only the most exceptional of circumstances. The press argued that in general terms the Bill should ensure that complainants make full use of the PCC rather than the courts.

¶3.6 As a result, what followed was sustained lobbying, and then detailed negotiations between

government and Lord Wakeham, Chair of the PCC at that time. In summary, although the Government took the view that the press should not be excluded from the ambit of the HRA, these negotiations led to the enactment of section 12. This provides as follows:

1263

¶Chapter 5 | Media Policy

"12 Freedom of Expression (1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression. (2) If the person against whom the application for relief is made ('the respondent') is neither present nor represented, no such relief is to be granted unless the court is satisfied – (a) That the applicant has taken all practicable steps to notify the respondent; or (b) That there are compelling reasons why the respondent should not be notified. (3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed. (4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to – (a) The extent to which – (i) The material has, or is about to, become available to the public; or (ii) It is, or would be, in the public interest for the material to be published; (b) Any relevant privacy code. (5) In this section – "court" includes a tribunal; and "relief" includes any remedy or order (other than in criminal proceedings)."

¶The Role of Lord Wakeham 3.7 Lord Wakeham, who had been a Conservative member of the House of Lords since 1992,120

became Chair of the PCC in January 1995. Given his background, and his commitment to the principles of self-regulation and freedom of the press, it would be surprising if he did not have strong personal views about the Human Rights Bill. In the event, he led support of the case the press was advancing with enthusiasm and effectiveness. Questions arise as to whether in doing so he was speaking on behalf of the PCC (as its Chair), the press as a whole, I or both. On that point, Lord Wakeham said this in his evidence to the Inquiry:121

"I must make it clear that throughout the discussions on the Bill, I never acted as a 'representative of the press'. My concern was always with the future of self-regulation, and the way in which the human rights legislation might undermine it."

1264

¶PART I | The Press and Politicians

¶3.8 Asked about this in oral evidence, Lord Wakeham expanded as follows:122

"Q: Some commentators have said that it is simply inappropriate for the chairman of the regulator, who's meant to be, at the end of the day, an impartial mediator and complaints handler, to essentially lobby on behalf of the press in respect of government decisions that might affect the press' commercial interests ... A: I was never a regulator. I never said I was a regulator. I didn't pretend to be a regulator. My task was to try and raise standards in the press by means of a code and by self-regulation. You have to bear in mind that when I went there, the press had been governed previously by the Press Council, and there ... wasn't a code. We were the starting of the code. It was pretty crude when we started, and we refined it, but at no time was it a regulator's job. It was a job of raising standards in self-regulation. Q: Did you speak to the press industry when the human rights bill was going through Parliament? Did you speak to representatives of the press industry? A: I can't remember doing so. I can't absolutely swear that I never spoke to a journalist at any time about it, but I certainly wasn't representing them. My concern was for the public. The Press Complaints Commission, in my view, was the best way of protecting the public and I didn't want to see it destroyed in the way that it more or less has been in the last few years."

¶3.9 Whether or not the PCC was a regulator in the full sense of that term, a question arises about

how far Lord Wakeham as the Chair of the self-regulatory body charged with the responsibility for resolving press complaints should have been speaking out in support of the case which the press clearly espoused. He would doubtless have been aware of the position the press was taking on these issues regardless of whether he discussed them with journalists and editors. In any event, the connection between the role of the PCC in maintaining press standards and opposing the Human Rights Bill insofar as it related to the press is not immediately apparent.

¶3.10 Other witnesses disagreed with Lord Wakeham's recollection. Asked about a debate in the

House of Commons during the second reading of the Bill, the Rt Hon Jack Straw MP gave evidence to the Inquiry as follows:123 Q: Then ... you make it clear that there were discussions which involved you, the late Lord Williams and Lord Wakeham ... "The new clause was drafted in consultation with Lord Wakeham and representatives of the national and regional press. They have given it a warm welcome." So the upshot is that part of the explanation for the genesis of section 12, a consultation, agreement if you like, which you reach with Lord Wakeham, who may well have been speaking for a large section of the press. Is that fair?

¶I A: Yes. He was certainly speaking for a large section of the press. Whatever his

position in the House of Lords, he was chairman of the Press Complaints Commission ... I mean, it wasn't a piece of private enterprise by Lord Wakeham. There would have been no purpose served in busy ministers spending their time speaking to Lord Wakeham if this was just a sort of personal foible. He had a very influential position and he was tending to speak on behalf of the press ... I worked on the basis that if I could square Lord Wakeham, I'd square most sections of the press, which is what I wanted to do".

1265

¶Chapter 5 | Media Policy

¶Concerns of the press and lobbying 3.11 In any event, regardless of whether he formally represented the interests and concerns of

the press, it is clear that Lord Wakeham played a central role in advancing the arguments which the press would have wished to raise. On 12 January 1998 Lord Wakeham wrote to Lord Smith,124 the Secretary of State for Culture, Media and Sport, expounding his principal concerns about the Bill:125

"... there are two central problems with the Bill. The first is the issue of prior restraint – and the new arsenal of weapons that will be available to the rich, the corrupt and those comfortable with the courts to gag newspapers. The second is whether the PCC should be a public authority within the terms of the Bill – and therefore the sort of legal entity which the newspaper industry never intended it to be".

¶3.12 The issue of 'prior restraint' is explained below: in fact, it came to the fore slightly later in the

chronological sequence. The second issue is technical, but may be boiled down to this. If the PCC was a public authority within the meaning of what is now section 6 of the HRA, then it would be unlawful for it to act incompatibly with any human right. It was believed, or feared, at the time – depending on one's point of view – that the effect of incorporating Article 8 of the Convention into domestic law would be to create a privacy law 'by the back door'. Subject to the application of section 6, the PCC would become bound to apply it.

¶3.13 Lord Wakeham made two speeches in the House of Lords during the Committee stage and

the Third Reading of the Human Rights Bill. In written evidence, he explained that his view was that:126

"The Bill as drafted would damage the freedom of the press and badly wound the system of tough and effective self regulation that we have built up to provide quick remedies without cost for ordinary citizens. It would inevitably produce a privacy law, despite the Government's stated opposition to one".

¶3.14 Initially, the press through Lord Wakeham tried to obtain a complete exemption from the

HRA. Lord Wakeham accepted this in oral evidence, also noting that he did not expect that this would be considered acceptable:127

"Q: Did you initially seek to get the press a complete exemption from the provisions of the Human Rights Act? A: I certainly did, with absolutely no chance whatsoever of getting it through the House of Lords, but I wanted to raise the issue, which was important. I have to tell you that Parliament is in favour of strengthening restraints on the press whenever they find an opportunity, and if there's any legislation flows from the circumstances we're I in, I have considerable reservations as how it would get on in Parliament."

1266

¶PART I | The Press and Politicians

¶3.15 In oral evidence to the Inquiry, Mr Straw explained why Lord Wakeham's assessment that he

had 'absolutely no chance whatsoever of getting it through the House of Lords' was correct:128 "... Lord Wakeham went on to say that there was a second issue, which he described as far more serious, which was whether the PCC should be a public authority within the terms of the bill. In fact, the PCC was not a public authority within the terms of the Bill, but what the PCC were trying to secure was a situation where the media were outwith the impact of the Bill so you just drew a ring around them somehow and they be excluded from any adjudication on the conflict between Article 8 and Article 10 or anything else. Now, that was just impossible to meet, and I had to explain that to them, and we didn't meet it. It's also simply incorrect for anyone now to say that nobody knew that a Human Rights Act would lead to a law of privacy. Of course they did. They said so. But as I brought out in my Gareth Williams lecture, we all knew it was going to do that. That was discussed endlessly in Parliament."

¶3.16 I now turn to the issue of 'prior restraint', in relation to which Lord Wakeham also made strong

representations. What this issue amounted to concerned the legal test the High Court should apply in granting without notice injunctions in privacy cases: in essence, Lord Wakeham's contention was that it should be more difficult for privacy claimants to obtain such injunctions than would ordinarily be the case because the right to freedom of expression would always be in play.129 Here, it is fair to point out that the reasons he advanced back in 1998 were broadly similar to the reasons he gave to the Joint Committee on Privacy and Injunctions in 2011:130 "My concern was to stop privacy cases by and large coming to the courts at all. I wanted people who felt they were done down by the press to go to something less than court. You only have to look in the papers the other day; it cost a footballer half a million pounds to bring a privacy action, which he lost. That is of no use to the vast majority of my old constituents ... I wanted section 12 to try to encourage the use of the Press Complaints Commission and therefore people would not come to court nearly as much so we could deal with it...."

¶3.17 On this issue Lord Wakeham received a sympathetic ear from Government. The Inquiry heard

evidence that extensive negotiations took place between Lord Wakeham, Lord Smith and Mr Straw who was then the Home Secretary. Mr Straw explained in oral evidence to the Inquiry why he took the view that these negotiations were both necessary and appropriate:131 "I was very anxious to achieve a consensus on this legislation because I have a principle which is that major constitutional change should only go through if there is

¶I some kind of greater legitimacy, either through a consensus in Parliament or through

a referendum, and the Conservatives were opposing the bill at second reading and I was anxious to see whether we could reach an accommodation so we could get their endorsement to it. Also I thought a part of what Lord Wakeham and the PCC were saying was reasonable. [On the issue of prior restraint] ... I thought they had a point there".

1267

¶Chapter 5 | Media Policy

¶3.18 During the Committee stage debate in the House of Commons,132 Mr Straw explained that the

need for a more onerous legal test reflected a principle already recognised by the European Court of Human Rights:133 "The dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the court. This is especially so as far as the press is concerned, for news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest". Mr Straw added that in the light of this principle, the Government believed that:134

"The courts should consider the merits of an application when it is made and should not grant an interim injunction simply to preserve the status quo ante between the parties".

¶3.19 Lord Wakeham gave evidence as to precisely how section 12 of the HRA came about, including the nature of his involvement in its genesis. In written evidence, he explained as follows:135

"... I believe Jack Straw understood ... [my views] more clearly ... When the Bill moved from the Lords to the Commons in the spring of 1998, he moved swiftly to try to deal with some of the issues that were raised and what became Section 12 was the result. Jack worked closely with me on the wording of the amendment, and we eventually agreed it at a hastily arranged meeting at Heathrow Airport. I believe Section 12 was the best compromise that was likely to have been achieved in the circumstances. It tried to tackle the issue of prior restraint and in Jack Straw's phrase in the House of Commons, 'preserve self regulation'. But it has – as the recent rows over super-injunctions have shown – only been partially successful."

¶3.20 The evidence of Lord Wakeham and Mr Straw therefore appears to be consistent. Mr Straw

also accepted that the Government agreed to the inclusion of section 12 having regard to the concerns of the press. On 2 July 1998 the Bill had reached its second reading in the House of Commons. Mr Straw was asked at the Inquiry about a debate which took place on that day:136

"Q: You were debating what was then clause 13, which became section 12, and ... you told the Commons: "As the Committee will know, there was concern in some sections of the press that the bill might undermine press freedom and result in a privacy law by the back door." And then you say that was not the government's view and you've dealt with the issue. A: Yes. Q: But on the issue of prior restraint and what became section 12, the third paragraph, you say: "We recognise the concerns expressed in the press. As I have made clear, for example in respect of the bill's impact on the churches, we are anxious to deal I constructively with them. In the light of those concerns we decided to introduce a new clause specifically designed to safeguard press freedom. We thought long and hard about it...". A: Yes."

1268

¶PART I | The Press and Politicians

¶3.21 Even so, it would be going too far to conclude that the Government introduced what became

section 12 on account of the concerns of the press and for no other reason. Taking Mr Straw's evidence as a whole, he made it clear that there were other reasons for 'raising the bar' in relation to the grant of without notice interim injunctions. Press concerns may have been a factor to which the Government had regard, and there may have been a form of compromise as to the precise wording of the provision; this appears to have been a case in which the thrust of overall Government policy and the interests of the press came into alignment.

¶3.22 I do not overlook the evidence of Mr Blair who placed a somewhat different interpretation of these events:137

"Q. Was it the position that News International – I suppose together with everybody else – were lobbying for complete press immunity from the Human Rights Act? A. Yes, that's right. They wanted no suggestion that you would move outside the bounds of the PCC and self-regulation. Q. And were you generally supportive of that position? A. Yes, that was – I mean, my – my view was that if you were to deal with this, you had to deal with it head on, as it were, not through the Human Rights Act, which would be a sort of side way of dealing with it. Also, at that time, I think I'm right in saying it was Lord Wakeham who was head of the PCC, who was something actually I thought was doing quite a good job of that, and the PCC were pretty fierce on this, on behalf the whole of the media, really, not any one particular part of it. Q. Was the position reached that following, if I can put it in these terms, pressure from Lord Irvine – of course then your Lord Chancellor, who I think was responsible for piloting the act through Parliament generally, certainly of course through the Lords – that he persuaded you that your position was incorrect and we ended up with a compromise, which we see in the form of Section 12 of the Act? A. That's right. Q. In terms, though, of what your position was, what was the problem in allowing a privacy law to develop incrementally through Article 8, which is what would have happened – indeed has happened in any event – with the introduction of the Act in the form in which we now see it? A. As I say, I felt we should still be with the self-regulation argument, and I knew that we were going to have quite a big battle over it if we changed that position. In the end, we did come to a compromise, and I think that compromise was perfectly sensible, by the way."

¶I

¶3.23 I can quite understand how from Mr Blair's perspective, section 12 appeared to be a

compromise; he after all was supportive of the press case for complete exemption from the scope of the HRA. But the evidence of Lord Wakeham and Mr Straw clearly demonstrates that complete immunity was unrealistic and unacceptable, not least from the point of view of public opinion.

¶pp96-97 lines 4-16, Tony Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-Morning-Hearing-28-May-2012.pdf

1269

¶Chapter 5 | Media Policy

¶Aftermath 3.24 A number of academic commentators have taken the view that the press concerns about

the application of the HRA and any satisfaction they may have gained from section 12 were misplaced. They argue that irrespective of the HRA, judges were already developing the common law of breach of confidence to protect privacy. They also argue that the Government did not intend by section 12 to include any provision which required the courts to do more than apply the principles set out in the Convention, and that it would have been pointless to attempt to do so in any event, as the UK's international obligations would permit persons who took the view that domestic law inadequately protects their rights to bring a claim against the UK in the European Court of Human Rights.138

¶3.25 However, evidence given to the Inquiry by a number of media lawyers was to the effect that

the procedural provisions of section 12 have, in fact, afforded considerable protection to the press. Mark Thomson, of Atkins Thomson Solicitors, put it this way:139

"It is important to note that section 12 of the HRA has made the threshold tests for interim injunctions harder to obtain than before – in effect, a potential claimant has to show that he or she would be more likely than not to succeed at trial on proving the threatened publication is unlawful. Despite what the press say, for an interim court measure, that is a high threshold, and one which is meant to reflect the importance of freedom of speech. This point was recognised by Jack Straw and Professor Phillipson in their evidence before the Select Committee."

¶3.26 Mr Straw gave similar evidence to the Joint Committee on Privacy and Injunctions, on 17

¶October 2011:140

"Lord Wakeham has kindly reminded me of what I said [at the time] ... it was words to the effect that the introduction of section 12 should make these interlocutory injunctions pretty rare, and people in general would go to the Press Complaints Commission. We can argue about the extent to which they are relatively rare. There has been a lot of publicity about individual ones, but they are fewer in number than is imagined".

¶3.27 Nonetheless, it is necessary to keep this in perspective. As already pointed out at paragraph

3.18 above above, section 12 of the HRA broadly reflected principles laid down by the European Court of Human Rights in Strasbourg.

¶Reflections 3.28 It is clear that the press in general, and Lord Wakeham in particular, lobbied heavily against

I the Human Rights Bill insofar as it related to the press and related freedom of expression issues. It is also clear that section 12 of the HRA was seen at the time as a form of compromise between competing interests. Even so, the robust evidence received from Mr Straw suggests that, although press/Wakeham lobbying had an influence on the ultimate course of events, there were other sound reasons for enacting section 12.

1270

¶PART I | The Press and Politicians

¶3.29 Section 12 did not of course create a complete immunity for the press from the ambit of the

HRA. Following the comment that Lord Wakeham made to the Joint Committee on Privacy and Injunctions to the effect that he was disappointed that section 12 had not achieved what had been hoped and that he wanted to encourage the use of the PCC,141 there was the following exchange:142

Q (Lord Greenford): Do you think you succeeded in making freedom of expression superior to the right of privacy? Lord Wakeham: No, I do not. I think there was a balance, but the balance was not even-steven. What I thought I had achieved was what Jack Straw said in the House of Commons when he introduced section 12; I thought he got it exactly right at that time. It has not worked out like that, and I am disappointed."

¶3.30 On the other hand, Professor Gavin Phillipson told the Joint Committee:143

"Can I just add that there was nothing in section 12 to suggest that cases should be steered off to the Press Complaints Commission? Section 12 tells the courts what to do. It does not say anything about whether or not someone would prefer to go to the PCC and there is nothing in it to say that injunctions will be rare. It simply says that injunctions will be granted only if the court thinks that the claimant has the stronger case. If the claimant has the stronger case they will get the injunction".